Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”): (i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice; (ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity; (iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole; (iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person; (v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”); (vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses; (vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b); (viii) any Contract to make capital expenditures in excess of $1,000,000; (ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses; (x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person; (xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000; (xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements; (xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and (xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business. (b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”). (c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement. (d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms. (e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Contracts. (a) Section 4.12(a) 4.12 of the Seller Company Disclosure Letter contains a list Schedules specifically identifies (or, as applicable, contains a cross-reference to another Section of by the Seller Disclosure Letter that lists), organized according to each applicable subsection of set forth below in this Section 4.12(a4.12) which applies to such each Company Material Contract (other than this Agreement or any Related Agreement). The term "Company Material Contract, of " shall include each of the following Transferred Contracts to which the Company or any Company Subsidiary is a party to or by which the Company or any Company Subsidiary is bound (in each case, other than this Agreement or any Related Agreement):
(a) any Contract with any Significant Company Customer;
(b) any Contract generating, or that is reasonably likely to generate, more than 5% of revenues for the Company and the Company Subsidiaries over the twelve month period from the date of this Agreement, other than those set forth on Section 4.12(j) of the Company Disclosure Schedules;
(c) any Contract with any director, officer, employee or consultant that would require the Company or any Company Subsidiary to make any payments in connection with the Merger, or upon termination of employment, but excluding any Contract (i) that is terminable at-will or, in the case of consultants, with 30 or fewer days of notice by the Company or any of the Company Subsidiaries without cost, liability or financial obligations (other than Real Property Leasesaccrued regular compensation and benefits through the date of termination, Benefit Plans including any such notice period), or Employment Agreements(ii) under which the Company and the Company Subsidiaries collectively have paid or are obligated to pay less than $10,000;
(d) any Contract for indemnification (other than standard indemnification provisions in Contracts entered into by the contracts listed on Section 4.12(aCompany or any Company Subsidiary in the Ordinary Course of Business) or any guaranty;
(e) any Contract containing any covenant limiting in any respect the right of the Seller Disclosure Letter together with contracts Company or any of the type described Company Subsidiaries to (i) engage, participate or compete in subclauses any line of business, market or geographic area, (i)-(xiiiii) entered into develop, market or distribute products or services, (iii) conduct business with any Person, (iv) solicit the employment of, or hire, any Person, or (v) compete with any Person; or granting any exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal, "most favored nation" rights, rights of first negotiation or other exclusive rights or similar terms to any Person, but in each case excluding Contracts containing limitations that (A) are not material to the Company or any Company Subsidiary, and (B) do not limit the ability of the Company or any Company Subsidiary to develop or market additional products or services;
(f) any Lease for real or personal property in which the amount of payments that the Company or any of the Company Subsidiaries is required to make on an annual basis exceeds $25,000;
(g) any Contract pursuant to the express terms of which the Company or any of the Company Subsidiaries is currently obligated to pay in excess of $25,000 (or, in the case of a Contract for the purchase of inventory made in the Ordinary Course of Business, $50,000) in any one year period that is not terminable by the Company or the Company Subsidiaries without penalty upon notice of ninety (90) days or less;
(h) any Contract currently in force relating to the disposition or acquisition by the Company or any of the Company Subsidiaries after the date hereof and prior to of (i) assets with a book value exceeding $25,000 (or, in the Closing Date are collectively referred to herein as case of the “Material Contracts”):sale of inventory made in the Ordinary Course of Business, $50,000) , or (ii) Equity Interests in an Entity;
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive Company or any Company Subsidiary is a licensor of Intellectual Property or agrees to Encumber, not assert, Transfer or sell rights in or with respect to such Personany Intellectual Property, except for distribution contracts with retail outlets, independent sales agents, other distributors and end users entered into by the Company or any Company Subsidiary in the Ordinary Course of Business;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vij) any joint ventureventure Contract or any other Contract that involves a sharing of revenues in excess of $10,000, limited liability company or partnership Contract with any third-party involving involves a sharing of profits, revenue cash flows, expenses or expenses;
(vii) any Contract evidencing an outstanding loanlosses, advance or investment by the Business to or in any Personwith other Persons, or guarantee by the Business payment of the obligations of royalties to any Person in respect of any Liability of such other Person, including letters of credit and surety bonds, other than Contracts that will identified in Section 4.12(a) of the applicable Company Disclosure Schedule;
(k) any Contract currently required to be terminated filed as an exhibit pursuant to and in accordance Item 601(b)(10) of Regulation S-K promulgated under the Securities Act, other than those currently on file with Section 6.07(bthe SEC (including any Amendments to Contracts filed as of the Company Balance Sheet Date that are required to be filed);
(viiil) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant containing a "standstill" provision with respect to any third-party of any right of first refusal or other similar rights to purchase any Equity Interests of the Business’ assets, properties or businessesCompany;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Dgse Companies Inc), Merger Agreement (Superior Galleries Inc)
Contracts.
(a) Section 4.12(a4.8(a) of the Seller Company Disclosure Letter contains a list (oran accurate and complete list, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement, of each of the following Transferred all Contracts (other than Real Property Leasesany Company Benefit Plan) in effect as of the date hereof, Benefit Plans of the following types to which the Company or Employment Agreements) any of its Subsidiaries is a party or bound (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Company Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt filed by the Business Company as a material Contract pursuant to Item 601(b)(10) of more Regulation S-K of the SEC, other than $1,000,000 Contracts described in Item 601(b)(10)(iii) of Regulation S-K;
(ii) any Contract that expressly imposes any restriction on the current fiscal year right or ability of the Company and its Subsidiaries, collectively, to compete with any other Person (or in any one-year period over its remaining termline of business, market or geographical area), other than any such Contracts that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 90 days or less;
(iii) any Contract containing any (A) “most favored nation” or similar provisions, (B) exclusivity provisions or (C) rights of first refusal or first offer, other than any such Contracts that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 90 days or less, (in each case, other than any agreement in which any of the foregoing provisions is solely for the benefit of the Company or any of its Subsidiaries);
(iv) any Contract that in the year ended December 31, 2022 was (or in the year ending December 31, 2023 is reasonably expected to be) one of the ten (10) largest sources of revenues for the Company and its Subsidiaries for the applicable year based on amounts paid or payable;
(v) any Contract that in the year ended December 31, 2022 was (or in the year ending December 31, 2023 is reasonably expected to be) one of the ten (10) largest sources of payment obligations for the Company and its Subsidiaries, based on amounts paid or payable;
(vi) any Contract that involves a (A) revenue or profit sharing or similar agreement under which the Company or any of its Subsidiaries has outstanding commitments (other than any Company Benefit Plan) or (B) “minimum purchase” requirement, “take or pay,” “ship or pay” or similar obligations, in each case with outstanding commitments in an amount in excess of $50,000, in any calendar year;
(vii) any Contract relating to indebtedness for borrowed money of (or guarantees thereof by) the Company or any of its Subsidiaries (other than any such indebtedness owed by the Company or any wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company, and guarantees thereof);
(viii) any Contract that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of inventory or the purchase orders entered into or sale of Hydrocarbons, in each case, in the ordinary course of business consistent with past practice) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person, in each case, with any material outstanding obligations as of the date of this Agreement;
(iiix) each partnership, joint venture or limited liability company agreement;
(x) any Contract entered into with relating to any Derivative Transaction;
(xxi) an Affiliatethe Sealy Ranch Lease;
(xii) each joint development agreement, officer exploration agreement, participation, farmout, farming or director of Seller program agreement or similar Contract that either (A) requires the Company or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract to make expenditures from and after January 1, 2023 that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be in excess of Fifty Thousand Dollars ($50,000) in the aggregate or (B) is material to the Businessoperation of the Company and its Subsidiaries, taken as a whole;
(ivxiii) any Contract entered into with for the customers gathering, transportation, processing, treating or suppliers sale of Hydrocarbons, other than any such Contracts that may be cancelled without material liability to the Business listed on Section 4.17 and 4.18 Company or any of the Seller Disclosure Letter its Subsidiaries upon notice of 30 days or less;
(xiv) any Contract pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, Company or any of its Subsidiaries has an obligation to make an investment in or any Transferred Entity receives or grants a license to material Intellectual Property from or loan to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues in or to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments wholly owned Subsidiary of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”Company);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xivxv) any Contract with any employee leasing Governmental Authority, other than Contracts entered into in the ordinary course of business; and
(xvi) any Contract involving the settlement, conciliation or staffing company by similar agreement of any Litigation or threatened Litigation (A) with any Governmental Authority or (B) pursuant to which such employee leasing the Company or staffing company’s employees any of its Subsidiaries are party thereto and that restricts in any material respect the operations or contractors provide services to conduct of the BusinessCompany or any of its Subsidiaries after the date hereof.
(b) Section 4.12(b) of Neither the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, Company nor any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries Company is in breach of or default under any Company Material Contract and, to the Knowledge of Sellerthe Company, as of the date hereof, no other party to any such Company Material Contract is in breach of or default thereunderunder any Company Material Contract, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on through the part of Seller Company’s or any of its Subsidiaries’ action, that with notice or the lapse of time or both would constitute a breach of or default or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any other party to such benefit under any Company Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each casecase except as would not reasonably be expected to have, for any such breach, default, event or condition that individually or in the aggregate, has not had a Company Material Adverse Effect. Each Company Material Contract (i) is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Knowledge of the Company, of each other party thereto, and (ii) is in full force and effect, subject to the Enforceability Exceptions, in each case except as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice of any other party to a Company Material Contract to terminate for default, convenience or otherwise, or not renew, any Company Material Contract, in each case, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) The Company has made available to Parent all joint operating agreements in effect as of the date hereof, to which the Company or any of its Subsidiaries is a party or bound (collectively, the “Joint Operating Agreements”).
Appears in 2 contracts
Samples: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Contracts. (a) Section 4.12(a3.9(a) of the Seller Company Disclosure Letter contains Schedule identifies each Contract to which any Acquired Company is a list (orparty, or by which it is bound, that constitutes a Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts to which any Acquired Company is a party or by which it is bound as of the date of this Agreement (other than Real Property Leases, Benefit Plans or Employment Agreementsany Employee Plan) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the constitutes a “Material ContractsContract”)::
(i) any Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) an Acquired Company will be required by its terms after the date of this Agreement to pay any monetary obligations or is currently expected to result in the payment (B) that contains material obligations or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicelimitations on such Acquired Company’s conduct;
(ii) any Contract entered into with (xA) an Affiliate, officer materially limiting the freedom or director of Seller or any of its Subsidiaries or right of any Transferred Entity Acquired Company to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, or (yC) any entity controlled by an officer containing exclusivity obligations or director of Seller otherwise materially limiting the freedom or any of its Subsidiaries or right of any Transferred EntityAcquired Company to sell, distribute or manufacture any products or services for any other Person;
(iii) any Contract that restricts the Business from competing with any Person requires by its terms or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not is reasonably be expected to require the payment or delivery of cash or other consideration to any Acquired Company in an amount having a value in excess of $2,000,000 in the fiscal year ending December 31, 2017, or by any Acquired Company in an amount having a value in excess of $2,000,000 in the fiscal year ending December 31, 2017, and in each case which cannot be material to the Business, taken as a wholecancelled by such Acquired Company without penalty without more than ninety (90) days’ notice;
(iv) any Contract entered into with relating to (A) the customers pricing or suppliers reimbursement terms for any Key Product, (B) the distribution of any Key Product (for the Business listed on Section 4.17 and 4.18 avoidance of doubt, excluding any Contract solely in respect of courier services), or (C) the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personpurchase from any Acquired Company of any Key Product;
(v) all Contracts pursuant any Contract relating to which SellerIndebtedness in excess of $500,000 (whether incurred, its Subsidiaries assumed, guaranteed or secured by any Transferred Entity receives or grants a license to material Intellectual Property from or to asset) of any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)Acquired Company;
(vi) any Contract with any Person constituting a material joint venture, limited liability company partnership or partnership Contract with any third-party involving a similar profit sharing of profits, revenue or expensesarrangement;
(vii) any Contract evidencing that by its express terms requires an outstanding loan, advance or investment by the Business to or in any PersonAcquired Company, or guarantee by the Business any successor to, or acquirer of, an Acquired Company, to make any payment to another Person as a result of the obligations a change of any Person in respect of any Liability control of such Person, including letters Acquired Company (a “Change of credit and surety bonds, other than Contracts that will be terminated pursuant Control Payment”) or gives another Person a right to and in accordance with Section 6.07(b)receive or elect to receive a Change of Control Payment;
(viii) any Contract to make that prohibits the declaration or payment of dividends or distributions in respect of the capital expenditures in excess stock of $1,000,000an Acquired Company, the pledging of the capital stock or other equity interest of an Acquired Company or the issuance of any guaranty by an Acquired Company;
(ix) any Contract providing for the grant to In-bound License and any thirdOut-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businessesbound License;
(x) any Contract entered into with pursuant to which the customers Company has continuing obligations or suppliers interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $2,000,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Business listed on Section 4.17 and 4.18 of Company, in each case that cannot be terminated by the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing Company without penalty without more than sixty (60) days’ notice without material payment or terms in favor of such Personpenalty;
(xi) any each acquisition or divestiture Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts that contains continuing representations, covenants, indemnities or other arrangements to which it is a party for goods obligations (including “earn out” or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000contingent payment obligations);
(xii) any Contracts entered into Contract that relates to any swap, forward, futures, or other similar derivative transaction with the customers or suppliers a notional value in excess of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements$500,000;
(xiii) any Contract which involves between the sale, transfer or acquisition of Company and any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; andGovernmental Body;
(xiv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xv) any Contract (A) with any employee leasing Affiliate, director, executive officer (as such term is defined in the Exchange Act), Person holding 5% or staffing company by which such employee leasing or staffing company’s employees or contractors provide services more of the Shares, or, to the Businessknowledge of the Company, any Affiliate (other than the Company) or immediate family member of any of the foregoing or (B) in which any of the foregoing Persons has a direct or indirect material financial interest.
(b) Section 4.12(bThe Company has either delivered or made available to Parent an accurate and complete copy of each Material Contract or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (XXXXX) database of the Seller Disclosure Letter sets forth a complete and correct listSEC. No Acquired Company nor, to the knowledge of the Company as of the date hereofof this Agreement, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) party is a party that is used or held for use in, but not exclusivelyin material breach of, or that arises out ofmaterial default under, but not exclusivelyany Material Contract and no Acquired Company, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (knowledge of the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofCompany, each any other party to a Material Contract is has taken or failed to take any action that with or without notice, lapse of time or both would constitute a legalmaterial breach of or material default under any Material Contract. Each Material Contract is, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms respect to the Acquired Companies and, to Seller’s Knowledgethe knowledge of the Company, each other party thereto, a valid and is binding agreement in full force and effect effect, enforceable in accordance with its terms, except as such enforcement may be subject in all cases to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or other Laws affecting creditors’ rights generally rights, and subject to by general principles of equityequitable principles. Since January 1, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid 2017 and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of , the date hereof, none of Seller, Acquired Companies have not received any Subsidiary of Seller, written notice regarding any material violation or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectsince been cured.
Appears in 2 contracts
Samples: Merger Agreement (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Contracts. Neither the Company nor any of its Subsidiaries is party to any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act as of the date of this Agreement that has not been so filed (a) a “Filed Company Contract”). Section 4.12(a3.01(i) of the Seller Disclosure Company Letter contains a list sets forth (or, as applicable, contains a cross-with specific reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a3.01(i) to which applies to such ContractContract relates, of each including any further subsection) a list as of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) date of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):this Agreement of:
(i) each Contract pursuant to which the Company or any of its Subsidiaries has agreed not to compete with any person in any geographic area or in any activity or business that (A) is material to the operation of the Company and its Subsidiaries, taken as a whole, or (B) after the Effective Time would restrict Parent or any of its Subsidiaries (other than the Surviving Corporation and its Subsidiaries) in any material respect;
(ii) each Contract that to or by which the Company or any of its Subsidiaries is required by a party or bound providing for exclusivity (A) pursuant to which the Company or any of its terms Subsidiaries is restricted in any respect, which restrictions are material to the operation of the Company and its Subsidiaries, taken as a whole, or is currently expected (B) which after the Effective Time would restrict Parent or any of its Subsidiaries (other than the Surviving Corporation and its Subsidiaries) in any respect, in each of the above clauses (A) and (B), with respect to result the development, manufacture, marketing or distribution of their respective products or services;
(iii) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness having an aggregate principal amount in excess of $10,000,000;
(iv) each Contract which has aggregate future sums due to or from the payment Company or receipt by the Business any of its Subsidiaries of more than $1,000,000 in 10,000,000 during the current fiscal year life of the Contract and to or in by which the Company or any one-year period over of its remaining termSubsidiaries 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 purchase orders entered into (1) Liens for Taxes, assessments and other governmental charges not yet due and payable that are payable without penalty or that are being contested in good faith and, in each case, for which adequate reserves have been established, (2) Liens for 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 respect with the use of the properties or assets encumbered thereby (collectively, “Permitted Liens”);
(iiv) any each Contract entered into with (x) an Affiliate, officer which has aggregate future sums due to or director of Seller from the Company or any of its Subsidiaries of more than $25,000,000 per annum or $100,000,000 over the life of any Transferred Entity the Contract and to or (y) any entity controlled by an officer or director of Seller which the Company or any of its Subsidiaries is a party or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person bound (other than licenses and subscriptions for Software obtained from a third party (ABenefit Plans) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with containing any provisions contemplating or incorporated relating in any Product, (C) that is used for business infrastructure way to a “change in control” or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract similar event with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller Company or one or more of its Subsidiaries, enforceable against such Person in accordance with its terms andincluding provisions requiring Consent of, to Seller’s Knowledgeor notice to, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium any Governmental Entity or other Laws affecting creditors’ rights generally and subject to general principles person in the event of equitya change in control of the Company or one or more of its Subsidiaries, regardless or otherwise having the effect of whether considered 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 proceeding in equity material violation or at Law, except for such failures to be a legal, valid and binding obligation, enforceablematerial breach of, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have constitute a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (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, termination, right of first refusal or first offer, material amendment, revocation, cancelation or acceleration of any material obligation, or 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;
(vi) 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 and contemplates aggregate payments to the Company or any of its Subsidiaries in excess of $15,000,000 per annum and 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;
(vii) each Contract to or by which the Company or any of its Subsidiaries is a party or bound forming or establishing, or relating to the formation or establishment or operation of, any joint venture (whether in partnership, limited liability company or other legal entity), in each case, that is material to the operation of the Company and its Subsidiaries, taken as a breach whole;
(viii) each Contract to or default on by which the part Company or any of Seller its Subsidiaries is a party or bound entered into in connection with the settlement or other resolution of any Proceeding involving the future performance of material obligations by the Company or any of its Subsidiaries, ;
(ix) each Contract to or any other party to such Material Contract, nor has Seller by which the Company or any of its Subsidiaries received is a party or bound containing any notice standstill provisions which in any material respect limit (1) the ability of any such breachperson to acquire the securities or assets of the Company or any of its Subsidiaries or (2) the ability of the Company or any of its Subsidiaries to acquire the securities or assets of any person;
(x) each Contract to or by which the Company or any of its Subsidiaries is a party or bound that contains any continuing indemnification, default, event “earn-out” or condition, exceptother similar contingent payment obligations (other than milestone payments and warranty obligations, in each case, for any under commercial Contracts entered into the ordinary course of business consistent with past practice), or credit support relating to such breachobligations, default, event or condition that individually or in the aggregate, has not had and which would not reasonably be expected to result in payments in excess of $10,000,000;
(xi) each Contract (1) under which the Company or any of its Subsidiaries licenses or sublicenses material Intellectual Property from or to any third party (other than non-exclusive licenses to customers and off-the-shelf, commercially available and/or “shrink-wrap” agreements) outside of the ordinary course of business consistent with past practice or (2) that restricts in any material respect the right of the Company or any of its Subsidiaries to use, deploy or register any material Intellectual Property; and
(xii) each Contract pursuant to which the Company guarantees performance obligations of any person either (1) which would reasonably be expected to result in payments by the Company in excess of $10,000,000 or (2) with a remaining term of longer than two years from the date of this Agreement (other than (A) Contracts that are terminable at will or upon advance notice, in each case, by the Company or its Subsidiaries, prior to the expiration of the remaining term and (B) off-the shelf, commercially available and/or “shrink-wrap” agreements or that contain similar immaterial obligations). The Contracts of the Company or any of its Subsidiaries of the type referred to in clauses (i) through (xii) of this Section 3.01(i) (whether in effect on the date of this Agreement or entered into following the date of this Agreement and prior to the Closing Date), together with the Filed Company Contracts and the Significant Program Contracts, are collectively referred to in this Agreement as “Specified Contracts”. The Company has made available to Parent a true and complete copy of, and all material substantive written modifications and amendments currently in effect to, (x) each of the Specified Contracts other than the Significant Program Contracts and (y) a representative Contract for each of the programs listed on Section 3.01(i)(y) of the Company Letter (all Contracts for such programs, the “Significant Program Contracts”). Each Specified Contract is in full force and effect (except for those Contracts that have expired in accordance with their terms) and is a Material Adverse Effectlegal, valid and binding agreement of the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effect of general principles of equity. Each of the Company and its Subsidiaries has performed or is performing all material obligations required to be performed by it under the Specified Contracts and is not (with or without notice or lapse of time or both) in breach in any material respect or default thereunder, and has not waived (other than any implied waiver) or failed to enforce any material rights or benefits thereunder and, to the knowledge of the Company, no other party to any of the Specified Contracts is (with or without notice or lapse of time or both) in breach in any material respect or default thereunder. To the knowledge of the Company, there has occurred no event that (with or without notice or lapse of time or both) would give to others any right of termination, material amendment or cancelation of any Specified Contract.
Appears in 2 contracts
Samples: Merger Agreement (Orbital Atk, Inc.), Merger Agreement (Northrop Grumman Corp /De/)
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiiii)-(xiv) entered into after the date hereof of the Original Agreement and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or and terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this the Original Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, Person that contain “take or pay” provisions or that contain minimum purchase requirements;; and
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21September 30, 2015 2014 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereofof the Original Agreement, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (collectively, the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofof the Original Agreement, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this the Original Agreement.
(d) As of the date hereofof the Original Agreement, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Contracts. (a) Section 4.12(a) 4.15 of the Seller Company Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of lists each of the following Transferred types of Contracts (other than Real Property Leasesto which the Company or any of its Subsidiaries is a party, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) as of the Seller Disclosure Letter together with contracts Agreement Date, or by which any of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):their respective properties or assets is bound:
(i) any employment or consulting Contract with any executive officer or other employee or independent contractor of the Company or member of the Company Board earning an annual salary from Company and its Subsidiaries in excess of the lowest annual base salary reported in the Company’s most recent annual report on Form 10-K or definitive proxy statement for any of the Company’s “named executive officers,” as such term is defined in Item 402(a)(3) of Regulation S-K of the Securities Act, other than those that are terminable by the Company or any of its Subsidiaries on no more than thirty (30) days notice without liability or financial obligation to the Company;
(ii) any Company Plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the announcement or consummation of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any Contract (other than a Government Contract) providing for indemnification which would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole or any guaranty that is required material to the Company and its Subsidiaries, taken as a whole, other than any guaranty by the Company of any of its wholly-owned Subsidiaries’ obligations or any Contract providing for indemnification entered into in connection with the distribution, sale or license or services or products in the ordinary course of business, which indemnification, in the case of any customer agreement, does not materially differ from the provisions embedded in the Company’s standard forms of customer agreements as made available to Parent and the agreements contained in the folders named “04.01.05 Customer Agmts ($2MM or above)”, “04.01.05 New Customer Agmts” or “04.01.11 Customer Agmts on Customer Paper ($2mm or above)” of the electronic data room maintained by Fenwick & West LLP (as long as such agreements were available in the electronic data room before 5:00 p.m. (Pacific time) on September 8, 2010);
(iv) any Contract containing any covenant applicable to the Company or any of its Subsidiaries (or, as a result of the consummation of the Merger, would by its terms be applicable to Parent or is currently expected any of its Subsidiaries) (A) limiting in any respect any such Person’s right to result engage in any line of business or to operate in any geographic area or (B) granting any exclusive rights in respect of Owned Company IP;
(v) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of assets, other than any Contract entered into in the payment ordinary course of business, or receipt by pursuant to which the Business Company or any of more its Subsidiaries has any material ownership interest in any other Person or other business enterprise other than $1,000,000 the Company’s Subsidiaries;
(vi) any Contract for the acquisition of an entity or assets (excluding any procurement Contract or license entered into in the current fiscal year ordinary course of business) pursuant to which the Company or any of its Subsidiaries has any material continuing indemnification, “earn-out” or other contingent obligations;
(vii) any joint venture, joint marketing or joint development agreement, (A) under which the Company or any of its Subsidiaries (1) had out-of-pocket payment obligations in any excess of $500,000 during the one-year period over ending on the Agreement Date or (2) with respect to joint venture and joint development agreements, reasonably expects to have out-of-pocket payment obligations in excess of $500,000 during the one-year period beginning on the Agreement Date and (B) which may not be canceled without penalty upon notice of 90 days or less; or any agreement pursuant to which the Company or any of its remaining termSubsidiaries have continuing obligations to jointly develop any Intellectual Property Rights that will not be owned solely by the Company or one of its Subsidiaries;
(viii) any dealer or distributor agreement under which the Company or any of its Subsidiaries had revenues or out-of-pocket payment obligations in excess of $2,000,000 during the one-year period ending on the Agreement Date;
(ix) any Contract that (A) contains most favored customer pricing provisions or (B) grants any exclusive rights or rights of first refusal to any Person;
(x) any Contract containing a provision regarding any financial penalty for the failure by the Company or any of its Subsidiaries to comply with any support or maintenance obligation (other than those obligations that are terminable by the Company or any of its Subsidiaries on no more than twelve (12) months’ notice or otherwise without material liability or financial obligation to the Company and its Subsidiaries, taken as a whole), if such provision materially differs from the provisions embedded in the agreements contained in the folders named “04.01.05 Customer Agmts ($2MM or above)”, “04.01.05 New Customer Agmts” or “04.01.11 Customer Agmts on Customer Paper ($2mm or above)” of the electronic data room maintained by Fenwick & West LLP (as long as such agreements were available in the electronic data room before 5:00 p.m. (Pacific time) on September 8, 2010).
(xi) any Contract to license any third party to manufacture or reproduce any Company Products or any Contract to sell or distribute any Company Products, except (A) agreements with distributors or sales representatives in the ordinary course of business, or (B) agreements allowing internal copies made or to be made by end-user customers in the ordinary course of business;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, whether as borrower or lender, in each case, in excess of $1,000,000, other than purchase orders (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned Subsidiaries, in each case, in the ordinary course of business;
(xiii) (A) any settlement agreement entered into since April 30, 2007 relating to Intellectual Property Rights, and (B) any settlement agreement not relating to Intellectual Property Rights entered into since April 30, 2007, other than (1) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the ordinary course of business consistent with past practicepractice in connection with the routine cessation of such employee’s or independent contractor’s employment with the Company or (2) settlement agreements for cash only (which have been paid);
(iixiv) any Company IP Agreement;
(xv) (A) any Government Contract, if the revenues received by the Company under such Government Contract, together with the revenues received by the Company under any other Government Contract entered into with the same counterparty (xwhether or not currently in effect), exceed $2,000,000 in the aggregate; (B) an Affiliateany Government Contract with a Governmental Entity under which the Company has received revenues totaling $650,000 or more over the immediately preceding nine (9) fiscal quarters; and (C) any Government Proposal (with a U.S. Federal Governmental Entity) that, officer if awarded, the Company would reasonably expect to receive revenues of $650,000 or director more (it being understood that this Section 4.15(a)(xv) shall in no way limit or otherwise affect the meaning of Seller the representations of the Company set forth in Section 4.20);
(xvi) any other Contract that requires, on its face, the Company or any of its Subsidiaries to make payment to a third party in excess of $1,000,000 in any individual case not described in clauses (i) through (xv) above; or
(xvii) to the Knowledge of the Company, any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which, to the Knowledge of the Company, would, individually or in the aggregate, be reasonably expected to have a material adverse effect on any Transferred Entity material Company Product or otherwise would reasonably be expected to have a Company Material Adverse Effect and is not described in clauses (yi) any entity controlled by an officer or director through (xvi) above. Each contract of Seller or the type described in clauses (i) through (xvii) is referred to herein as a “Material Contract.”
(i) Each Material Contract is valid and binding on the Company and any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to extent such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it Subsidiary is a party for goods or services furnished by or thereto, as applicable, and to it, except for any such agreement under which the aggregate remaining liability Knowledge of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s KnowledgeCompany, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is , except where the failure to be valid, binding, enforceable and in breach or default under any Material Contract andfull force and effect, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; (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, except where any noncompliance, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; and (iii) there is no default under any Material Contract by the Company or any of its Subsidiaries or, to the 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 or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto under any such Material Contract, nor has the Company or any of its Subsidiaries received any notice of any 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 Company Material Adverse Effect. The Company has made available to Parent true and complete copies of all Material Contracts, including any amendments thereto (excluding any purchase order, work order, statement of work or service ticket related to any Material Contract that does not materially amend or modify the terms of such Material Contract).
Appears in 2 contracts
Samples: Merger Agreement (ArcSight Inc), Merger Agreement (Hewlett Packard Co)
Contracts. (a) Section 4.12(a4.17(a) of the Seller Company Disclosure Letter contains identifies each Contract to which the Company or any of its Subsidiaries is a list (orparty, or by which the Company or any of its Subsidiaries is bound, that constitutes a Company Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which the Company or Employment Agreements) (the contracts listed on Section 4.12(a) any its Subsidiaries is a party or by which it is bound as of the Seller Disclosure Letter together with contracts date of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the this Agreement constitutes a “Company Material ContractsContract”)::
(i) any Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Entity and pursuant to which (A) the Company or any of its Subsidiaries will be required after the date of this Agreement to pay any monetary obligations or (B) that contains material obligations or limitations on the conduct of the Company or its Subsidiaries;
(ii) any Contract (A) by its terms limiting the freedom or right of the Company or any of its Subsidiaries or Affiliates to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (C) containing exclusivity obligations or otherwise limiting the freedom or right of the Company or any of its Subsidiaries or Affiliates to sell, distribute or manufacture any products or services for any other Person;
(iii) any Contract that requires by its terms or is currently reasonably expected to result in require the payment or receipt delivery of cash or other consideration to the Company or any of its Subsidiaries in an amount having an expected value in excess of $100,000 in the fiscal year ending December 31, 2023 or by the Business Company or any of its Subsidiaries in an amount having an expected value in excess of $100,000 in the fiscal year ending December 31, 2023 and in each case which cannot be cancelled by the Company or its Subsidiaries without penalty or further payment without more than ninety (90) days’ notice;
(iv) any Contract relating to Indebtedness for borrowed money in excess of $1,000,000 100,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any of its Subsidiaries or creating any material Liens with respect to any assets of the Company or any of its Subsidiaries;
(v) any Contract with any Person constituting a joint venture, collaboration, partnership or similar profit sharing arrangement or requiring any Person to develop or commercialize any product, technology or service;
(vi) any Contract (excluding any Company Plan) that by its express terms requires the Company or any of its Subsidiaries, or any successor to, or acquirer of, the Company or any of its Subsidiaries, to make any payment to another Person as a result of a change of control of the Company or any of its Subsidiaries, as applicable (a “Company Change of Control Payment”) or gives another Person a right to receive or elect to receive a Company Change of Control Payment;
(vii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the limited liability company interests, capital stock or other equity interests of the Company or its Subsidiaries, the pledging of the limited liability company interests, capital stock or other equity interests of the Company or its Subsidiaries or the issuance of any guaranty by the Company or any of its Subsidiaries;
(viii) any material (A) in-bound license (other than Commercially Available Software) and (B) out-bound license of Intellectual Property Rights (other than non-exclusive licenses granted by the Company or any of its Subsidiaries in the current fiscal year ordinary course of business);
(ix) any Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms;
(x) any Contract relating to the disposition or acquisition of assets or rights (including equity interests) except for sales of inventory in the ordinary course of business;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries leases or subleases any material real property;
(xii) any Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with this Agreement and the transactions contemplated hereby;
(xiii) any Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiv) any 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 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, collaboration, 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 one-year period over of its remaining termSubsidiaries; or (D) license granted to any third party to manufacture or produce any product, other than purchase orders 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 consistent with past practice;
(iixv) any Contract entered into granting a right of first refusal, right of first offer, or similar right with respect to any assets of a Person or that contains any provision requiring the purchase of all or a material portion of requirements for a given product or service from another Person; or
(xxvi) any other Contract that is currently in effect and would be required to be filed by the Company as an Affiliate, officer exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or director that would be required to be disclosed under Item 404 of Seller or Regulation S-K under the Securities Act (assuming in each case such requirements were applicable to the Company).
(i) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to extent such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it Subsidiary is a party for goods or services furnished by or thereto, as applicable, and to it, except for any such agreement under which the aggregate remaining liability Knowledge of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s KnowledgeCompany, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
, subject to the Enforceability Exceptions; (eii) Neither Seller nor any the Company and each of its Subsidiaries is in breach or default under any Material Contract Subsidiaries, and, to the Knowledge of Sellerthe Company, no each other party thereto, has performed all material obligations required to be performed by it under each Company Material Contract; and (iii) there is no material default under any such Company Material Contract is in breach by the Company or default thereunderany of its Subsidiaries or, to the Knowledge of the Company, any other party thereto, and to Sellerthe Company’s Knowledge Knowledge, no event or condition has occurred and is continuing that constitutes or would constitute (with or without constitutes, or, after notice or lapse of time or both), would constitute, a breach or material default on the part of Seller the Company or any of its SubsidiariesSubsidiaries or, or to the Knowledge of the Company, any other party to thereto under any such Company Material Contract, nor has Seller the Company or any of its Subsidiaries received any written notice of any such breach, material default, event or condition. The Company has furnished or made available to Parent true and complete copies of all Company Material Contracts, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectincluding all amendments thereto.
Appears in 2 contracts
Samples: Merger Agreement (Diffusion Pharmaceuticals Inc.), Merger Agreement (Diffusion Pharmaceuticals Inc.)
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;Schedule 3(o)(i) hereto lists each Acquired Contract.
(ii) In addition, the Disclosure Schedule lists the following contracts and other agreements to which BDE is a party:
(A) any Contract entered into with agreement (xor group of related agreements) an Affiliaterelating to the Business for the lease of personal property to or from any Person providing for lease payments in excess of $10,000 per annum;
(B) any agreement (or group of related agreements) relating to the Business for the purchase or sale of personal property, officer or director for the furnishing or receipt of Seller services, the performance of which will extend over a period of more than 1 year, result in a material loss to BDE, or involve consideration in excess of $10,000;
(C) any agreement concerning a partnership or joint venture relating to the Business;
(D) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Lien on any of its Subsidiaries assets, tangible or of any Transferred Entity or intangible;
(yE) any entity controlled by an officer agreement concerning confidentiality or director non-competition relating to the Business;
(F) any agreement involving any BDE stockholder and their Affiliates (other than BDE) relating to the Business; or
(G) any agreement under which the consequences of Seller a default or any of its Subsidiaries termination could have a Material Adverse Effect on the Business or of any Transferred Entity;the Acquired Assets.
(iii) any BDE has delivered to Atrinsic a correct and complete copy of each Acquired Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected (as amended to be material to the Business, taken as a whole;
(ivdate) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(vSchedule 3(o)(i) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material hereto. Each Acquired Contract is a legalvalid, valid binding and binding enforceable obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract BDE and, to the Knowledge of SellerBDE, no the other party to any such Material or parties thereto, and each Acquired Contract is in breach full force and effect. Neither BDE, nor, to the Knowledge of BDE, any other party thereto, is in default under any Acquired Contract by which the Acquired Assets or default thereunderthe Business may be bound or affected or under which such assets, and business or operations receive benefits, and, to Seller’s the Knowledge no of BDE, there has not occurred any event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or the lapse of time or both), a breach the giving of notice or both would constitute such an event of default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectthereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Atrinsic, Inc.), Asset Purchase Agreement (Brilliant Digital Entertainment Inc)
Contracts. (a) Section 4.12(a) Schedule 2.14 sets forth an accurate and complete list of all Contracts in effect as of the date hereof to which any of the Company, any Company Subsidiary or Seller Disclosure Letter contains or any Affiliate thereof (but with respect to Seller and its Affiliates, only such Contracts relating to the Business) is a list party (orother than purchase orders or standard sales orders entered into by the Company or any Company Subsidiary, as applicable, contains a cross-reference in the ordinary course of business) which by its terms: (a) is not terminable at will within six months and requires future expenditures or other performance with respect to another Section goods, equipment or services having an annual value in excess of $500,000, (b) relates to any Indebtedness other than Intercompany Balances or Intracompany Obligations, (c) (i) limits the ability of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each Company or any of the following Transferred Contracts Company Subsidiaries to compete in any line of business or with any Person in any geographic area or that would so limit the freedom of the Company or any of the Company Subsidiaries after the Closing or (ii) contains exclusivity obligations binding on the Company or any of the Company Subsidiaries, (d) requires any capital commitment or capital expenditure (including any series of related expenditures) by the Company or the Company Subsidiaries of greater than $500,000, (e) relates to the acquisition or disposition of any business or assets or under which the Company or any Company Subsidiaries has any future liability greater than $500,000 with respect to an “earn-out,” contingent purchase price, deferred purchase price or similar contingent payment obligation, or any indemnification obligation, (f) constitutes a contract or agreement with any officer, employee, director, stockholder or other Affiliate of the Company (other than Real Property Leases, (x) Company Benefit Plans or Employment Agreementsand Seller Benefit Plans and (y) (the Affiliate contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and that have been terminated prior to the Closing Date are collectively referred without any additional liability to herein as any party), (g) constitutes an agreement that contains any indemnification obligations of the “Material Contracts”):
(i) any Contract that is required by its terms Company or is currently expected Company Subsidiaries, or credit support relating to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining termsuch indemnification obligations, other than purchase orders entered into any of such indemnification obligations or credit support incurred in the ordinary course of business consistent with past practice;
or that require credit support or indemnification obligations of less than $500,000, (iih) is an Intellectual Property Contract that is material to the Business (excluding Intellectual Property Contracts for commercially available off-the-shelf Software that is not the subject of a negotiated agreement and excluding Contracts for which the aggregate amounts payable to or by the Company or the Company Subsidiaries related to such Contract are less than $250,000), (i) reflects any Contract entered into with partnership, joint venture or similar agreement or arrangement, or (j) is a Real Property Lease covering real property in excess of 25,000 rentable square feet (the Contracts described in clauses (a) through (j), the “Material Contracts”). Seller has made available to Investor a true and complete copy of (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or each Material Contract (including all modifications and amendments thereto and written waivers thereunder) and (y) any entity controlled by an officer all form purchase orders or director contracts of Seller the Company or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions Company Subsidiary that are not and would not reasonably be expected to be material to the Businessbusiness of the Company and the Company Subsidiaries, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations . Except as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect thatwould not, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. , each Material Contract to which the Company, any Company Subsidiary or Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case(or any Affiliate thereof), as amendedapplicable, supplemented or otherwise modified through (is a party is in full force and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term effect in accordance with its respective terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any . Each Material Contract is valid, binding and enforceable against the Company, a Company Subsidiary or Seller (or any Affiliate thereof), as applicable, and, to the Knowledge of Seller, no each other party thereto in accordance with its terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether enforcement is sought in a proceeding at law or in equity) and except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and the Company Subsidiaries, taken as a whole. None of the Company, any Company Subsidiary or Seller (or any Affiliate thereof) is in default, violation or breach in any material respect under (or, to the Knowledge of Seller, is alleged to be in default or breach in any material respect under) any such Material Contract to which it is in breach a party, or default thereunderhas within the last 12 months provided or received written notice of any intention to terminate any such Material Contract. To the Knowledge of Seller, and to Seller’s Knowledge no event or condition circumstance has occurred and is continuing that constitutes or would constitute (or, with or without notice or lapse the passage of time or both), would constitute, a default, violation or breach in any respect under any such Material Contract by any party thereto, or default on result in a termination thereof or would cause or permit the part acceleration of or other changes of or to any right or obligation or the loss by the Company, any Company Subsidiary or Seller (or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice Affiliate thereof) of any such breach, default, event or condition, exceptbenefit thereunder, in each case, except for any such breachdefaults, defaultbreaches, event violations terminations, accelerations or condition that changes as would not, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Contracts. (a) Section 4.12(a3.9(a) of the Seller Company Disclosure Letter contains Schedule identifies each Contract to which any Company Entity is a list (orparty, or by which it or its properties or assets are bound, that constitutes a Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which any Company Entity is a party or Employment Agreements) (the contracts listed on Section 4.12(a) by which it or its properties or assets are bound as of the Seller Disclosure Letter together with contracts date of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the this Agreement constitutes a “Material ContractsContract”)::
(i) any Contract that is a settlement, conciliation or similar agreement between the Company and any Governmental Body and pursuant to which (A) a Company Entity will be required by its terms after the date of this Agreement to pay any monetary obligations or is currently expected to result in the payment (B) that contains material obligations or receipt by the Business of more than $1,000,000 in the current fiscal year or in limitations on any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceCompany Entity’s conduct;
(ii) any Contract entered into between a Company Entity and any third Person (A) materially limiting the freedom or right of a Company Entity to engage in any line of business or to compete with any other Person in any location or line of business, (xB) an Affiliate, officer or director of Seller or containing any of its Subsidiaries or “most favored nations” terms and conditions (including with respect to the pricing of any Transferred product) granted by the Company, (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Company Entity to sell, distribute or manufacture any products or services for any other Person, or (yD) any entity controlled by an officer with respect to the design, development, delivery, use, marketing, distribution, licensing out or director of Seller or any of its Subsidiaries or otherwise exploiting of any Transferred EntityCompany product or Company IP, anywhere in the world;
(iii) any Contract that restricts the Business from competing with any Person requires by its terms, or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not is reasonably be expected to require, the payment or delivery of cash or other consideration to any Company Entity in an amount having an expected value in excess of $500,000 in the fiscal year ending December 31, 2023 or by any Company Entity in an amount in excess of $500,000 in the fiscal year ending December 31, 2023 and in each case (A) which cannot be material to cancelled by any Company Entity without penalty or further payment without more than ninety (90) days’ notice and (B) excluding commercially available off-the Business, taken as a wholeshelf software licenses and Software-as-a-Service offerings;
(iv) any Contract entered into with the customers relating to Indebtedness, in each case, involving an aggregate principal amount in excess of $500,000 (whether incurred, assumed, guaranteed or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personsecured by any asset);
(v) all Contracts pursuant to which Sellerany Contract between any Company Entity and any third Person constituting a joint venture, its Subsidiaries collaboration, partnership or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)similar revenue sharing arrangement;
(vi) any joint ventureContract that prohibits or requires the declaration or payment of dividends or distributions in respect of the capital stock of any Company Entity, limited liability company the pledging of the capital stock or partnership Contract with other equity interests of any third-party involving a sharing Company Entity or the issuance of profits, revenue or expensesany guaranty by any Company Entity;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit (A) In-bound License and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)(B) Out-bound License;
(viii) any Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), Person holding 5% or more of the Shares, or, to make capital expenditures in excess the knowledge of $1,000,000the Company, any Affiliate (other than the Company) or immediate family member of any of the foregoing;
(ix) any other Contract providing for that is currently in effect and has been filed (or is required to be filed) by the grant Company as an exhibit pursuant to any thirdItem 601(b)(10) of Regulation S-party K under the Securities Act or that would be required to be disclosed under Item 404 of any right of first refusal or other similar rights to purchase any of Regulation S-K under the Business’ assets, properties or businessesSecurities Act;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such PersonReal Property Lease;
(xi) any Contract providing for on-going that relates to the acquisition or disposition of any material business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets, exclusive license or otherwise), or that contains a right of first negotiation, right of first refusal, ongoing royalty or milestone payment obligations, earnout payments, ongoing indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000similar rights;
(xii) any Contracts entered into Contract with any Governmental Body under which payments in excess of $500,000 were received by any Company Entity in the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsmost recently completed fiscal year;
(xiii) each Contract to which any Company Entity is a party pursuant to which such Company Entity has continuing guarantee, “earn-out”, installment or similar contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Company Entity, in each case that could result in payments in excess of $500,000;
(xiv) each management or employment Contract between any Company Entity or (other than employment offer letters entered into in the ordinary course) any individual service provider of any Company Entity with total annual fees that equals or exceeds $500,000;
(xv) any severance, retention, transaction bonus, change in control or other similar Contract between the Company Entities and any Company Associate;
(xvi) any Contract which relating to any material distribution, supply, manufacturing, development, production or other similar collaborative arrangement with a third party, in each case that involves the sale, transfer or acquisition of any business annual payments to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its SubsidiariesCompany Entity greater than $500,000; and
(xivxvii) any Contract with Contract, the primary purpose of which is to provide for indemnification or guarantee of the obligations of any employee leasing or staffing company by which other Person that would be material to any Company Entity, other than any such employee leasing or staffing company’s employees or contractors provide services to Contracts entered into in the Businessordinary course of business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as As of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusivelythis Agreement, the Business and pursuant Company has either delivered or made available to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms Parent a copy of such Material Contracts after the date hereof, each Material Contract or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (XXXXX) database of the SEC. Neither the Company, its Subsidiary nor, to the knowledge of the Company, any other party thereto is in material breach of, or material default under, any Material Contract and neither the Company, its Subsidiary nor, or to the knowledge of the Company, any other party to a legalMaterial Contract has taken or failed to take any action that with or without notice, valid and binding obligation lapse of Seller time or one both would constitute a material breach of its Subsidiariesor material default under any Material Contract. Each Material Contract is, enforceable against such Person in accordance with its terms respect to the Company Entities and, to Seller’s Knowledgethe knowledge of the Company, each other party thereto, a valid and is binding agreement in full force and effect subject in all cases to applicable bankruptcyeffect, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
(e) Neither Seller nor , except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. Since January 1, 2021, the Company has not received any of its Subsidiaries is in written notice regarding any material violation or breach or default under any Material Contract and, to the Knowledge of Seller, no other party to that has not since been cured. No Company Entity has waived in writing any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or rights under any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any the waiver of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in which would be material to the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectCompany Entities.
Appears in 2 contracts
Samples: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)
Contracts. (ai) Section 4.12(aExcluding any contracts included in the Excluded Assets, Exhibit D-1, Exhibit D-2 and Schedule 6.01(ff) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with set forth all contracts of the type described in subclauses below to which any Target Entity is a party or by which any of the Assets are bound (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as collectively, all of such contracts, the “Material Contracts”):
(iA) any Contract contract that is required by its terms or is currently can reasonably be expected to result in the payment or receipt aggregate payments by the Business any Target Entity of more than Five Hundred Thousand Dollars ($1,000,000 in 500,000) during the current or any subsequent fiscal year of such Target Entity (based solely on the terms thereof and without regard to any expected increase in volumes or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicerevenues);
(iiB) any Contract entered into with contract that can reasonably be expected to result in aggregate revenues to any Target Entity of more than Five Hundred Thousand Dollars (x$500,000) an Affiliate, officer or director of Seller during the current or any subsequent fiscal year of its Subsidiaries such Target Entity (based solely on the terms thereof and without regard to any expected increase in volumes or of any Transferred Entity or revenues);
(yC) any entity controlled transportation and processing or similar contract that is not terminable without penalty on sixty (60) days or less notice;
(D) except for such item which will be fully satisfied or otherwise terminated at Closing without liability to Buyer or the Target Entities and at Seller’s sole cost and for which no Purchase Price Adjustment will be made, any indenture, mortgage, loan, credit or sale-leaseback or similar contract that can reasonably be expected to result in aggregate payments by an officer or director any Target Entity of Seller more than One Hundred Thousand Dollars ($100,000) during the current or any subsequent fiscal year of its Subsidiaries or of any Transferred such Target Entity;
(iiiE) any Contract contract that restricts constitutes a lease, under which any Target Entity is the Business from competing with lessor or the lessee of real or personal property, which lease (x) cannot be terminated by such Target Entity without penalty upon sixty (60) days or less notice and (y) involves an annual base rental of more One Hundred Thousand Dollars ($100,000);
(F) any Person or engaging contract containing covenants limiting the freedom of any Target Entity to engage in any line of business or activity in compete with any geographic region in which the Business operates, other than person or entity or operate at any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholelocation;
(ivG) any Contract entered into with contract pending for the customers acquisition or suppliers disposition, directly or indirectly (by merger or otherwise), of the Business listed on Section 4.17 and 4.18 Assets with a value in excess of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars Fifty Thousand Dollars ($50,000) in the aggregate (other than inventory or annual payments sales of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”Hydrocarbons);
(viH) any joint venturecontract pursuant to which Hydrocarbons from the Assets are, limited liability company or partnership Contract with any third-party involving a sharing of profitsare to be, revenue sold, that is not terminable without penalty on sixty (60) days or expensesless notice;
(viiI) any Contract evidencing an outstanding loan, advance or investment by contract granting any power of attorney with respect to the Business to or in affairs of any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)Target Entities;
(viiiJ) any Contract to make suretyship contract, performance bond, working capital expenditures in excess maintenance or other form of $1,000,000guaranty;
(ixK) any Contract providing contracts for the grant to any thirdexchange of Hydrocarbons; farm-party out or farm-in agreements; participation agreements; agreements of any right development; area of first refusal mutual interest agreements; plant agreements; production handling agreements; injection, repressuring and recycling agreements; carbon dioxide purchase or sale agreements; and salt water or other similar rights to purchase any of the Business’ assets, properties or businessesdisposal agreements;
(xL) any Contract entered into contract with the customers Seller or suppliers an Affiliate of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xiiTarget Entity) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 or is in effect after the Effective Time and that contains any material continuing obligations of Seller or any of its Subsidiarieswill not be terminated prior to Closing; and
(xivM) other than master services agreements and except for such items which will be fully satisfied or otherwise terminated at Closing without liability to Buyer or any Contract with of the Target Entities and at Seller’s sole cost and for which no Purchase Price Adjustment will be made, any employee leasing employment, services or staffing company by which such employee leasing consulting agreement or staffing company’s employees any plan, program, agreement, contract, arrangement or contractors provide services to the Businesspolicy providing contractual rights for compensation, pensions, profit sharing, incentive pay, severance, welfare, fringe benefits or any other right or benefit for employees, service providers or contractors.
(bii) Section 4.12(b) All of the Seller Disclosure Letter sets forth a complete and correct listcontracts described on Exhibit X-0, as of the date hereof, of each Contract pursuant to which Seller Xxxxxxx X-0 or any of its Subsidiaries (other than a Transferred EntitySchedule 6.01(ff) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is are in full force and effect subject in all cases to applicable bankruptcyand neither the Target Entities nor, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledgeknowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries contract is in breach of, or default under any Material Contract and, to with the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or the giving of notice, or both), a would be in breach or default on the part of Seller or of, any of its Subsidiariesobligations thereunder; provided, however, that notwithstanding the foregoing, with respect to any of the Contracts listed on Exhibit X-0, Xxxxxxx X-0 or Schedule 6.01(ff) that are identified on any other such Exhibit or Schedule by Seller as Contracts relating to the southwest Speaks field located in Lavaca County, Texas (the “Speaks Contracts”), the representation and warranty contained in the first sentence of this Section 6.01 (o)(ii) shall be qualified in its entirety by Seller’s knowledge. Prior to the execution of this Agreement, Seller has granted Buyer access to all Material Contracts and amendments thereto.
(iii) No Target Entity is a party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in Contract affecting the aggregate, has not had and would not reasonably be expected to have Assets with a Material Adverse Effectseismic vendor.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Energy Xxi (Bermuda) LTD), Purchase and Sale Agreement (Energy Xxi (Bermuda) LTD)
Contracts. Schedule 4.12 sets forth a true, correct and complete list of the following written contracts, agreements, leases, commitments and other instruments to which a Seller is, or is performing obligations as though it were, a party (other than the Employment Agreements set forth on Schedule 4.14 and the Seller Benefit Plans set forth on Schedule 4.15), in each case only to the extent related to, in connection with or otherwise affecting the Assets, the Business or the ownership or operation of the Assets or the Business but only to the extent they will become Assumed Contracts:
(a) Section 4.12(aeach lease or license involving any Assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $2,500,000 individually by any of the Sellers;
(b) all contracts and agreements to which a Seller Disclosure Letter contains is a list (or, as applicable, contains a cross-reference to another Section party that limit or restrict any of the Seller Disclosure Letter that lists), organized according to each subsection Sellers or any Key Business Employees of this Section 4.12(a) which applies to such Contract, of each any of the following Transferred Contracts Sellers from engaging in any business in any jurisdiction;
(other than Real Property Leasesc) all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets, Benefit Plans or Employment Agreements) (in each case requiring the contracts listed on Section 4.12(a) payment by any of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into Sellers after the date hereof of an amount in excess of $2,500,000;
(d) all contracts that provide for an increased payment or benefit, or accelerated vesting, upon the execution hereof or the Closing or in connection with the transactions contemplated hereby;
(e) all contracts and prior agreements granting any Person a Lien (other than a Permitted Lien) on all or any part of the Assets;
(f) all contracts and agreements for the cleanup, abatement or other actions in connection with any Hazardous Materials, the remediation of any existing environmental condition or relating to the Closing Date are collectively referred performance of any environmental audit or study;
(g) all contracts and agreements granting to herein as any Person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any of the “Material Contracts”):Assets;
(h) all contracts and agreements with any agent, distributor or representative that is not terminable without penalty on 90 days’ or fewer notice;
(i) all contracts and agreements for the granting or receiving of a license, sublicense or franchise under which any Contract that Person is required by its terms obligated to pay or is currently expected has the right to result receive a royalty, license fee, franchise fee or similar payment in excess of $100,000 annually;
(j) all joint venture or partnership contracts and all other contracts providing for the payment sharing of any profits (but excluding the limited partnership agreement of Huntsman Fuels);
(k) all customer and supplier contracts, not terminable without penalty on 90 days’ or receipt fewer notice either by the Business Seller party thereto or the applicable customer or supplier, for the provision of goods or services with a value in excess of $2,500,000 in any year during the two-year period ended December 31, 2005 by any of the Sellers;
(l) all outstanding powers of attorney empowering any Person to act on behalf of any of the Sellers that would be binding on the Purchaser as a result of the closing of the transactions under this Agreement;
(m) the software license agreements set forth on Schedule 4.12(m) (“Transferred Software License Agreements”); and
(n) all existing contracts, agreements, arrangements and commitments (other than those described in subsections (a) through (m) of this Section 4.12) to which any of the Sellers is a party or by which the Assets are bound (i) involving an annual commitment or annual payment to or from such Seller of more than $1,000,000 in the current fiscal year 2,500,000 individually or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be is material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers individually. True, correct and complete copies of the Business listed on Assumed Contracts described above in this Section 4.17 4.12 have been made available to the Purchaser or its representatives or agents. Subject to the following paragraph, the Assumed Contracts are legal, valid, binding and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) enforceable in all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and respects in accordance with Section 6.07(b);
(viii) any Contract their respective terms with respect to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is Sellers that are a party for goods or services furnished by or to itsuch Assumed Contracts, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant Sellers’ Knowledge with respect to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other Person party thereto, and is in full force and effect subject in all cases each case to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and other similar Laws affecting the enforceability of creditors’ rights generally generally, general equitable principles and subject to general principles the discretion of equity, regardless courts granting equitable remedies. There is no existing material default or breach by any of whether considered in a proceeding in equity the Sellers under any Assumed Contract (or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, event or in full force and effect condition that, individually with notice or in the aggregate, have not had and would not reasonably be expected to have lapse of time or both could constitute a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented material default or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunderbreach), and to Seller’s Knowledge the Sellers’ Knowledge, there is no such material default (or event or condition has occurred and is continuing that constitutes or would constitute (that, with or without notice or lapse of time or both), could constitute a breach material default or default on the part of Seller or breach) with respect to any of its Subsidiaries, or any other third party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breachAssumed Contract. As of the date hereof, defaultno party to any Assumed Contract is (x) repudiating any provision thereof, event (y) failing to perform its obligations thereunder claiming force majeure or conditionother right to suspend performance or (z) claiming any right to offset, except, discount or otherwise xxxxx; in each case, for in respect of any material amount or performance obligation owing thereunder, and except, in the case of clause (z), only as expressly permitted by the applicable contract. None of the rights of either Seller in the Assumed Contracts is subject to a Lien other than a Permitted Lien. Schedule 4.12 identifies with an asterisk each Assumed Contract set forth therein that requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such contract, agreement or other instrument in connection with the transactions contemplated hereby, including the assignment of such Assumed Contract to the Purchaser. The representations and warranties in this Section 4.12 in respect of MTBE Contracts are given only as of the date hereof. Certain of the Assumed Contracts may not in fact have been executed on behalf of a Seller and/or other Person party (or intended to be party) thereto or may have expired or be beyond their term. The Purchaser accepts the risk that if in fact any such breachcontract was not fully executed or has expired or is beyond its term, defaultit may not be enforceable by the Sellers (or after the Closing, event or condition that individually or the Purchaser), against any other party thereto. Subject to the preceding sentence, all representations and warranties of the Sellers in the aggregateparagraph immediately above shall apply with respect to each such contract as if it had been fully and validly executed, has not had and would not reasonably be expected to have a Material Adverse Effector was within its stated term, as applicable.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Huntsman International LLC), Asset Purchase Agreement (Texas Petrochemicals Inc.)
Contracts. (a) Section 4.12(a) Set forth in the Sabre Disclosure Schedule is a true and complete list of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each Contracts of the following Transferred Contracts (other than Real Property Leases, Benefit Plans types to which Sabre or Employment Agreements) (any Subsidiary is a party relating to the contracts listed on Section 4.12(a) Travelocity Business or by or to which the Travelocity Business or any of its properties may be bound or subject as of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):hereof:
(i) Contracts for the sale of any Contract that is required by its terms real or is currently expected to result in the payment personal (tangible or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, intangible) properties other than purchase orders entered into in the ordinary course of business consistent with past practicebusiness, or for the grant of any option or preferential rights to purchase any such properties;
(ii) any Contract entered into with (x) an AffiliateContracts for the construction, officer modification or director of Seller or any of its Subsidiaries or repair of any Transferred Entity building, structure or (y) any entity controlled by an officer facility or director of Seller or any of its Subsidiaries or for the incurrence of any Transferred Entitycapital expenditures or for the acquisition of fixed assets, providing for payments in excess of $100,000 in the aggregate;
(iii) Contracts relating to the acquisition by Sabre or any Contract Subsidiary of any operating business or the capital stock of any other Person that restricts has not been consummated or that has been consummated but contains representations, covenants, guaranties, indemnities or other obligations that remain in effect;
(iv) Contracts relating to any litigation;
(v) Contracts relating to the lending or borrowing of money or other indebtedness for borrowed money in excess of $75,000 or pursuant to which any assets of the Travelocity Business from competing with are or may become subject to a lien, charge, mortgage or other encumbrance;
(vi) Contracts under which Sabre or any Person Subsidiary agrees to indemnify any Person;
(vii) Contracts containing non-competition, exclusivity or engaging other similar provisions that would limit, impair or restrict the ability of the Travelocity Business to do business in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers geographical area or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) Contracts pursuant to which Sabre or any Contract Subsidiary leases, subleases or otherwise has the right to make capital expenditures use any real or personal property, except those contracts terminable (other than in excess the case of default by a party thereto) on 90 days' or less notice without any penalty and those involving receipt or payment of less than $1,000,00075,000 in any year;
(ix) any Contract providing for the grant to any third-party Contracts in respect of any right of first refusal licenses or other similar rights Contracts relating to purchase Intellectual Property and Contracts relating to advertising arrangements, except those contracts terminable (other than in the case of default by a party thereto) on 90 days' or less notice without any penalty and those involving receipt or payment of the Business’ assets, properties or businessesless than $75,000 in any year;
(x) any Contract entered into with the customers Contracts relating to portal or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personother distribution arrangements;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than Contracts in respect of the performance of its obligations under Contracts any joint venture, partnership or other arrangements to which it is a party for goods or services furnished by or to itsimilar arrangement (including, except for without limitation, any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such joint development agreement, $500,000);
(xii) Contracts with any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsGovernmental Entity;
(xiii) Contracts with any Contract which involves employee or consultant of the saleTravelocity Business relating to (A) non-disclosure, transfer confidentiality, assignment of inventions, proprietary rights or acquisition non-competition agreements and (B) severance, bonus or similar arrangements that become operative in connection with or as a result of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiariesthe Merger; and
(xiv) Contracts (other than those specified in any Contract with of clauses (i) through (xiii) of this clause (a)) which relate to or affect the business, operations or any employee leasing of the assets or staffing company by properties of the Travelocity Business in a material way, except those (x) which such employee leasing or staffing company’s employees or contractors provide services are specifically not required to be scheduled pursuant to the Businessprovisions of any of clauses (i) through (xiii) of this paragraph (a), and (y) which are terminable (other than in the case of default by a party thereto) on 90 days' or less notice without any penalty and those involving payments of less than $50,000 in any year; and, in the case of each of clauses (x) and (y) above, are not material.
(b) Section 4.12(b) Unless precluded by an applicable confidentiality agreement, true and complete copies of all Contracts listed on the Sabre Disclosure Schedule have been made available to Preview. All of the Seller Disclosure Letter sets forth a complete Contracts referred to in the preceding paragraph (a) clauses (i) through (xiv) are valid, binding, in full force and correct listeffect and enforceable in accordance with their terms against Sabre, or the applicable Subsidiary (as the case may be), and, to the knowledge of Sabre, against the date hereof, respective counterparties to such Contracts. None of each Contract pursuant to which Seller Sabre or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use inor, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms knowledge of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s KnowledgeSabre, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach breach, violation or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunderdefault, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (which, with or without notice or lapse of time or both), would constitute a breach breach, violation or default default, or give rise to any lien, charge or encumbrance or right of termination, modification, cancellation, prepayment, suspension, limitation, revocation or acceleration, under any Contract listed or required to be listed on the part Sabre Disclosure Schedule. None of Seller or Sabre, any Subsidiary or, to the knowledge of its SubsidiariesSabre, or any other party to such Material Contract, nor has Seller or any of the Contracts listed on the Sabre Disclosure Schedule is in material arrears in respect of the performance or satisfaction of the terms and conditions on its Subsidiaries received part to be performed or satisfied under any notice of such Contracts and no waiver or indulgence has been granted by any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in of the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectparties thereto.
Appears in 2 contracts
Samples: Merger Agreement (Preview Travel Inc), Merger Agreement (Sabre Holding Corp)
Contracts. (ai) Section 4.12(aExcept as set forth in Schedule 2.2(u)(i) of the Seller CPA16 Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofCPA16 SEC Documents, each CPA16 Material Contract is a legalvalid, valid binding and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases with respect to applicable bankruptcyCPA16 and the CPA16 Subsidiaries, insolvencyas applicable, reorganizationand, moratorium or to the Knowledge of CPA16, each of the other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Lawparties thereto, except for where such failures failure to be a legalso valid, valid binding and binding obligation, enforceable, or enforceable and in full force and effect thatwould not, individually or in the aggregate, have not had and would not reasonably be expected to have a CPA16 Material Adverse Effect. Seller has made available to Purchaser , and there are no defaults (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a complete and correct copy violation of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and includingdefault under) the date of this Agreement.
(d) As of the date hereof, none of Seller, under any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any CPA16 Material Contract has exercised by CPA16 or any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material ContractCPA16 Subsidiary, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract andor, to the Knowledge of SellerCPA16, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiariesthe other parties thereto, or any other party to such Material Contractexcept for those defaults that would not, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a CPA16 Material Adverse Effect. For purposes of this Agreement, “CPA16 Material Contracts” shall mean (A) any partnership, limited liability company or joint venture agreement between CPA16 or any CPA16 Subsidiary, on the one hand, and a third party, on the other hand, (B) any capitalized lease obligations and other indebtedness to any Person, other than individual items of indebtedness in a principal amount less than $1,000,000, (C) each material commitment, contractual obligation, borrowing, capital expenditure or transaction entered into by CPA16 or any CPA16 Subsidiary which may result in total payments by or liability of CPA16 or any CPA16 Subsidiary in excess of $1,000,000, (D) any other agreements filed or required to be filed as exhibits to the CPA16 SEC Documents pursuant to Item 601(b)(10) of Regulation S K of Title 17, Part 229 of the Code of Federal Regulations, (E) any interest rate cap, interest rate collar, interest rate swap, currency hedging transaction and any other agreement relating to a similar transaction to which CPA16 or any CPA16 Subsidiary is a party or an obligor with respect thereto, (F) the CPA16 Leases with respect to the five largest CPA16 Tenants measured by lease revenue, and (G) any agreement, commitment, instrument or obligation of a type described in Sections 2.2(u)(ii) through 2.2(u)(iv); in each case including all amendments, modifications and supplements to such CPA16 Material Contracts and all side letters to which CPA16 or any CPA16 Subsidiary is a party affecting the obligations of any party thereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carey W P & Co LLC), Merger Agreement (Corporate Property Associates 14 Inc)
Contracts. (a) Section 4.12(aSection 3.17(a) of the Seller Company Disclosure Letter contains Schedule sets forth a list (ortrue and complete list, as applicable, contains a cross-reference and the Company has made available to another Section of the Seller Disclosure Letter that lists), organized according Subscriber prior to each subsection of this Section 4.12(a) which applies to such Contractthe date hereof true and complete copies, of each Contract to which any member of the following Transferred Contracts Company Group is a party that (other than Real Property Leasesthan, Benefit Plans in each case, any Contract between the Company or Employment Agreements) (any wholly owned Company Subsidiary, on the contracts listed one hand, and any other wholly owned Company Subsidiary, on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”other hand):
(i) is an Affiliate Contract;
(ii) is a lease, sublease, license, occupancy agreement, concession or other Contract with respect to any Leased Real Property (the “Real Property Leases”) that involves aggregate annual payments in excess of $500,000;
(iii) is a Contract involving aggregate consideration in excess of $3,000,000 per year (whether payable or receivable by the Company Group) and that cannot be cancelled by the Company Group without penalty or without more than ninety (90) days’ notice;
(iv) is a partnership, joint venture or similar arrangement;
(v) contains (A) covenants of the Company Group purporting to limit either the type or line of business in which the Company Group may engage or the geographic area in which any of them may so engage, (B) “take or pay,” “requirements” or other similar provisions obligating a Person to provide the quantity of goods or services required by another Person or (C) pricing or margin provisions that provide “most favored nation” or similar provisions with respect to pricing;
(vi) evidences the creation, incurrence, assumption or guarantee of Indebtedness of the Company Group in an amount in excess of $1,000,000, or creation or incurrence of any Lien on any material property or asset of the Company Group;
(vii) grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the sale, transfer, pledge or disposition of any business, property or asset, or any Equity Security, of the Company Group;
(viii) provides for the acquisition or disposition of any business (or material properties or assets) of or by the Company Group (including Equity Securities) (whether by merger, sale of Equity Securities, sale of assets, or otherwise), other than (1) Contracts entered prior to March 31, 2020 with no remaining material obligations, (2) any Contract that is required provides for the acquisition or disposition of inventory or supplies of or by its terms the Company or is currently expected to result any Company Subsidiary in the payment ordinary course of business and (3) nonexclusive licenses of Intellectual Property to any customer of the Company or receipt any Company Subsidiary in the ordinary course of business;
(ix) is a settlement Contract which materially affects the conduct of the Company Group’s businesses;
(x) imposes exclusivity (other than non-competition covenants, which are addressed by clause (v) above) or non-solicitation obligations on the Business Company Group, except for Contracts entered into in the ordinary course of more than business which impose exclusivity or non-solicitation obligations that are not material to the Company Group;
(xi) requires the Company Group to make any capital commitment or capital expenditure in excess of $1,000,000 in during any twelve -month period;
(xii) is (A) a Contract pursuant to which the current fiscal year Company Group is granted rights under Intellectual Property of a third party that is material to the conduct of businesses of the Company Group other than Excluded Inbound Licenses, (B) a Contract pursuant to which the Company Group has granted rights under any Company Owned IP that is material to the business of the Company Group to any third parties, excluding Excluded Outbound Licenses, or (C) a Contract to which the Company Group is a party or bound, which restricts, in any one-year period over its remaining termmaterial respect, the right of the Company Group to use or exploit any Company Owned IP which is material to the businesses of the Company Group, excluding Excluded Inbound Licenses and Excluded Outbound Licenses; or
(xiii) is a Contract with a Significant Supplier, Significant Customer or Significant Distributor (each, as defined below) or a Governmental Entity, other than (A) purchase orders entered into in the ordinary course of business consistent or (B) requests for quotations or development Contracts with past practice;Significant Customers entered into in the ordinary course of business.
(iib) Each Contract listed (or required to be listed) on Section 3.17(a) of the Company Disclosure Schedule (and any Contract entered into with after the date hereof in accordance with, and not in violation of, the provisions of Section 5.01 that would have been listed (xor required to be listed) an Affiliate, officer on Section 3.17(a) of the Company Disclosure Schedule if it was entered into prior to the date hereof) is referred to herein as a “Company Material Contract.” No member of the Company Group is in breach of or director of Seller or any of its Subsidiaries or default under the terms of any Transferred Entity or Company Material Contract (y) and the Company Group has not received any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than written notice regarding any such restrictions breach or default), and, to the knowledge of the Company, no event has occurred that are not and with notice or lapse of time or both would not constitute a breach or default thereunder by any member of the Company Group, where such breach or default, individually or together with other such breaches or defaults, has been or would reasonably be expected to be material to the BusinessCompany Group, taken as a whole;
(iv) any Contract entered into with . To the customers or suppliers knowledge of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which SellerCompany, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or no other party to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that Company Material Contract is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments breach of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations default under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of any Company Material Contract where such Material Contracts after breach or default, individually or together with other such breaches or defaults, has been or would reasonably be expected to be material to the date hereofCompany Group, each taken as a whole. Each Company Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, the Company Group and is in full force and effect subject in all cases to applicable bankruptcyeffect, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid the Bankruptcy and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this AgreementEquity Exception.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Sale and Subscription Agreement (Allegro Microsystems, Inc.), Sale and Subscription Agreement (Allegro Microsystems, Inc.)
Contracts. (a) Section 4.12(a) Part 2.11 of the Seller Company Disclosure Letter Schedule contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such Contract, Agreement of each of the following Transferred Contracts (other than the Company Real Property Leases) to which the Company or a Company Subsidiary is a party (each such Contract (x) required to be listed in Part 2.11 of the Company Disclosure Schedule, Benefit Plans (y) that is a Company IP License, or Employment Agreements(z) that is required to be filed as a “material contract” (the contracts listed on Section 4.12(aas such term is defined in Item 601(b)(10) of Regulation S-K under the Seller Disclosure Letter together with contracts of Exchange Act) as an exhibit to the type described in subclauses (i)-(xiii) entered into after Most Recent Company 10-K under the date hereof and Exchange Act prior to the Closing Date are collectively date of this Agreement (other than any Company Plan), being referred to herein as the a “Material ContractsContract”):
(a) each Contract that restricts in any material respect the ability of the Company, any Company Subsidiary or any Affiliate of any of them to (i) engage or compete in any geographic area or line of business, market or field, or to develop, sell, supply, manufacture, market, distribute, or support any material product or service, (ii) transact with any Person or (iii) solicit any client or customer (or that would so restrict Parent, any Parent Subsidiary or any Affiliate of any of them following the Closing), in each case, other than licenses of Intellectual Property;
(b) each joint venture agreement, partnership agreement or similar agreement with a third party;
(c) each Contract (other than any Organizational Document) between the Company or any Company Subsidiary, on the one hand, and any director, officer or Affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Company Plan;
(d) each material acquisition or divestiture Contract that contains any material indemnification obligations or any material “earnout” or other material contingent payment obligations that are outstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(e) each Contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third party lender, and each Contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case in excess of $10,000,000;
(f) each Contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (ii) to pledge their capital stock or other equity interests, (iii) to make loans to the Company or any Company Subsidiary, or (iv) to grant liens on the property of the Company or any Company Subsidiary;
(g) each Contract that obligates the Company or any Company Subsidiary to make any loans, advances or capital contributions to, or investments in, any Person, except for (i) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (ii) extended payment terms for customers in the ordinary course of business, (iii) prepayment of Taxes for repatriated employees of the Company or any Company Subsidiary or (iv) loans, advances or capital contributions to, or investments in, any Person that is required by its terms not an Affiliate or is currently Employee of the Company not in excess of $10,000,000 individually;
(h) each Contract that grants any right of first refusal, first notice, first negotiation or right of first offer or similar right with respect to any assets, rights or properties of the Company or any Company Subsidiary (i) for, or that would reasonably be expected to result in the payment or receipt by the Business in, total consideration of more than $1,000,000 10,000,000, (ii) with a fair market value in excess of $10,000,000 or (iii) that concerns material Company IP;
(i) each Contract or series of related Contracts (excluding (i) purchase orders given or received in the current ordinary course of business and(ii) Contracts between the Company and any wholly owned Company Subsidiary or among any wholly owned Company Subsidiaries) under which the Company or any Company Subsidiary (A) paid in excess of $15,000,000 in fiscal year 2020, or is expected to pay in excess of $15,000,000 in fiscal year 2021 or (B) received in excess of $50,000,000 in fiscal year 2020, or is expected to receive in excess of $50,000,000 in fiscal year 2021;
(j) each Contract with any one-year period over its remaining termfoundry, or any provider of semiconductor product assembly, testing, and manufacturing services containing any “take or pay” or minimum purchase commitments that have outstanding payment obligations of the Company or a Company Subsidiary in excess of $10,000,000;
(k) each written collective bargaining or other than purchase orders labor or works council agreement covering employees of the Company or a Company Subsidiary;
(l) each lease or rental Contract involving personal property (and not relating primarily to real property) pursuant to which the Company or any Company Subsidiary is required to make rental payments in excess of $250,000 per month (excluding leases or rental Contracts for office equipment entered into in the ordinary course of business consistent with past practicebusiness);
(iim) each Contract relating to the acquisition, sale or disposition of any Contract entered into with (x) an Affiliate, officer business unit or director product line of Seller the Company or any Company Subsidiary and with any outstanding obligations that are material to the Company and the Company Subsidiaries, taken as a whole, as of its Subsidiaries or the date of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitythis Agreement;
(iiin) any material Government Contract that restricts has not been closed out or that has been closed out within the Business from competing last three (3) years;
(o) each material Contract with any “most favored nation” provision or that otherwise requires the Company or any Company Subsidiary (or, following the Closing, would require Parent or any Parent Subsidiary) to conduct business with any Person on a preferential or engaging exclusive basis, or that includes a price protection or rebate provision in favor of the counterparty to such Contract;
(p) each settlement agreement entered into since January 1, 2018 (i) with a Governmental Entity, (ii) that requires the Company or any line Company Subsidiary to pay more than $10,000,000 after the date of this Agreement, (iii) that imposes any material restrictions on the business of the Company or activity any Company Subsidiary or (iv) that imposes any material restrictions on any Affiliate of the Company (including future Affiliates);
(q) each material Contract (excluding (i) ordinary course confidentiality or non-disclosure agreements, (ii) purchase orders given or received in the ordinary course of business, (iii) statements of work that were signed prior to the date that is twenty four (24) months prior to the date hereof or that have been substantially satisfied in full, (iv) standard form Contracts, provided that (A) the standard form has been made available to Parent and (B) any geographic region in such Contract is materially similar to the standard form, and (v) except with respect to Contracts regarding material Company IP, Contracts under which the Business operatesCompany or any Company Subsidiary (A) paid less than $2,000,000 in fiscal year 2020, and is expected to pay less than $2,000,000 in fiscal year 2021 or (B) received less than $2,000,000 in fiscal year 2020, and is expected to receive less than $2,000,000 in fiscal year 2021) with any Top Customer, Top Distributor or Top Supplier of the Company and its Subsidiaries;
(r) each Contract relating to the creation of a Lien (other than Company Permitted Encumbrances) with respect to any material asset of the Company or any Company Subsidiary; and
(s) each employment or individual consulting Contract that both (i) is not terminable at will or for convenience by the Company on 30 days’ or less notice and (ii) obligates the Company or any Company Subsidiary to make payments or provide compensation in excess of $300,000 annually. There are no existing breaches or defaults on the part of the Company or any Company Subsidiary under any Material Contract, and, to the knowledge of the Company, there are no existing breaches or defaults on the part of any other Person under any Material Contract, in each case except where, individually or in the aggregate, such restrictions that are breaches or defaults have not constituted or resulted in and would not reasonably be expected to be material constitute or result in a Company Material Adverse Effect. No event has occurred or not occurred through the Company’s or any Company Subsidiary’s action or inaction or, to the Businessknowledge of the Company, taken as through the action or inaction of any third party, that, with notice or the lapse of time or both, would constitute a whole;
breach of or default under the terms of any Material Contract, in each case except where, individually or in the aggregate, such breaches or defaults have not constituted or resulted in and would not reasonably be expected to constitute or result in a Company Material Adverse Effect. Each Material Contract (iv) any Contract entered into with the customers or suppliers exception of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Government Contracts that will be have been closed out) is valid, has not been terminated pursuant prior to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by Agreement, is enforceable against the Business other than in respect of Company or the performance of its obligations under Contracts or other arrangements to which it applicable Company Subsidiary that is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofContract, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledgethe knowledge of the Company, each is enforceable against the other party parties thereto, and is in full force and effect each case subject in all cases to: (i) laws of general application relating to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws similar laws, now or hereafter in effect, affecting creditors’ rights generally generally; and subject to general principles (ii) rules of equitylaw governing specific performance, regardless of whether considered in a proceeding in equity or at Lawinjunctive relief and other equitable remedies, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contractand, in each case, as amendedexcept as, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had constituted or resulted in and would not reasonably be expected to have constitute or result in a Company Material Adverse Effect. Prior to the date of this Agreement, the Company has made available to Parent accurate and complete copies of each Material Contract in effect as of the date of this Agreement, together with all material amendments and supplements thereto in effect as of the date of this Agreement. Prior the date of this Agreement, no Top Customer, no Top Distributor and no Top Supplier to the Company or a Company Subsidiary has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary, given written notice to the Company or any Company Subsidiary of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Company Subsidiary, or, to the knowledge of the Company, threatened to do any of the foregoing or, to the knowledge of the Company, been threatened with bankruptcy or insolvency. All material representations, certifications and statements executed and submitted by the Company in connection with Material Contracts that are also Government Contracts were correct in all material respects as of their respective effective date.
Appears in 2 contracts
Samples: Merger Agreement (Advanced Micro Devices Inc), Merger Agreement (Xilinx Inc)
Contracts. Schedule 4.12 sets forth a true, correct and complete list of the following written contracts, agreements, leases, commitments and other instruments to which a Seller is, or is performing obligations as though it were, a party (other than the Employment Agreements set forth on Schedule 4.14 and the Seller Benefit Plans set forth on Schedule 4.15), in each case only to the extent related to, in connection with or otherwise affecting the Assets, the Business or the ownership or operation of the Assets or the Business but only to the extent they will become Assumed Contracts:
(a) Section 4.12(aeach lease or license involving any Assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $2,500,000 individually by any of the Sellers;
(b) all contracts and agreements to which a Seller Disclosure Letter contains is a list (or, as applicable, contains a cross-reference to another Section party that limit or restrict any of the Seller Disclosure Letter that lists), organized according to each subsection Sellers or any Key Business Employees of this Section 4.12(a) which applies to such Contract, of each any of the following Transferred Contracts Sellers from engaging in any business in any jurisdiction;
(other than Real Property Leasesc) all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets, Benefit Plans or Employment Agreements) (in each case requiring the contracts listed on Section 4.12(a) payment by any of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into Sellers after the date hereof of an amount in excess of $2,500,000;
(d) all contracts that provide for an increased payment or benefit, or accelerated vesting, upon the execution hereof or the Closing or in connection with the transactions contemplated hereby;
(e) all contracts and prior agreements granting any Person a Lien (other than a Permitted Lien) on all or any part of the Assets;
(f) all contracts and agreements for the cleanup, abatement or other actions in connection with any Hazardous Materials, the remediation of any existing environmental condition or relating to the Closing Date are collectively referred performance of any environmental audit or study;
(g) all contracts and agreements granting to herein as any Person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any of the “Material Contracts”):Assets;
(h) all contracts and agreements with any agent, distributor or representative that is not terminable without penalty on 90 days’ or fewer notice;
(i) all contracts and agreements for the granting or receiving of a license, sublicense or franchise under which any Contract that Person is required by its terms obligated to pay or is currently expected has the right to result receive a royalty, license fee, franchise fee or similar payment in excess of $100,000 annually;
(j) all joint venture or partnership contracts and all other contracts providing for the payment sharing of any profits (but excluding the limited partnership agreement of Huntsman Fuels);
(k) all customer and supplier contracts, not terminable without penalty on 90 days’ or receipt fewer notice either by the Business Seller party thereto or the applicable customer or supplier, for the provision of goods or services with a value in excess of $2,500,000 in any year during the two-year period ended December 31, 2005 by any of the Sellers;
(l) all outstanding powers of attorney empowering any Person to act on behalf of any of the Sellers that would be binding on the Purchaser as a result of the closing of the transactions under this Agreement;
(m) the software license agreements set forth on Schedule 4.12(m) (“Transferred Software License Agreements”); and
(n) all existing contracts, agreements, arrangements and commitments (other than those described in subsections (a) through (m) of this Section 4.12) to which any of the Sellers is a party or by which the Assets are bound (i) involving an annual commitment or annual payment to or from such Seller of more than $1,000,000 in the current fiscal year 2,500,000 individually or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be is material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers individually. True, correct and complete copies of the Business listed on Assumed Contracts described above in this Section 4.17 4.12 have been made available to the Purchaser or its representatives or agents. Subject to the following paragraph, the Assumed Contracts are legal, valid, binding and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) enforceable in all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and respects in accordance with Section 6.07(b);
(viii) any Contract their respective terms with respect to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is Sellers that are a party for goods or services furnished by or to itsuch Assumed Contracts, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant Sellers’ Knowledge with respect to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other Person party thereto, and is in full force and effect subject in all cases each case to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and other similar Laws affecting the enforceability of creditors’ rights generally generally, general equitable principles and subject to general principles the discretion of equity, regardless courts granting equitable remedies. There is no existing material default or breach by any of whether considered in a proceeding in equity the Sellers under any Assumed Contract (or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, event or in full force and effect condition that, individually with notice or in the aggregate, have not had and would not reasonably be expected to have lapse of time or both could constitute a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented material default or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunderbreach), and to Seller’s Knowledge the Sellers’ Knowledge, there is no such material default (or event or condition has occurred and is continuing that constitutes or would constitute (that, with or without notice or lapse of time or both, could constitute a material default or breach) with respect to any third party to any such Assumed Contract. As of the date hereof, no party to any Assumed Contract is (x) repudiating any provision thereof, (y) failing to perform its obligations thereunder claiming force majeure or other right to suspend performance or (z) claiming any right to offset, discount or otherwise abaxx; xn each case, in respect of any material amount or performance obligation owing thereunder, and except, in the case of clause (z), only as expressly permitted by the applicable contract. None of the rights of either Seller in the Assumed Contracts is subject to a breach Lien other than a Permitted Lien. Schedule 4.12 identifies with an asterisk each Assumed Contract set forth therein that requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such contract, agreement or other instrument in connection with the transactions contemplated hereby, including the assignment of such Assumed Contract to the Purchaser. The representations and warranties in this Section 4.12 in respect of MTBE Contracts are given only as of the date hereof. Certain of the Assumed Contracts may not in fact have been executed on behalf of a Seller and/or other Person party (or intended to be party) thereto or may have expired or be beyond their term. The Purchaser accepts the part of Seller risk that if in fact any such contract was not fully executed or any of has expired or is beyond its Subsidiariesterm, it may not be enforceable by the Sellers (or after the Closing, the Purchaser), against any other party thereto. Subject to such Material Contractthe preceding sentence, nor has Seller or any all representations and warranties of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or the Sellers in the aggregateparagraph immediately above shall apply with respect to each such contract as if it had been fully and validly executed, has not had and would not reasonably be expected to have a Material Adverse Effector was within its stated term, as applicable.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Texas Petrochemicals Inc.), Asset Purchase Agreement (Texas Petrochemicals Inc.)
Contracts. (a) Section 4.12(a5.17(a) of the Seller Parent Disclosure Letter contains identifies each Contract to which Parent or any of its Subsidiaries is a list (orparty, or by which Parent or any of its Subsidiaries is bound, that constitutes a Parent Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which Parent or Employment Agreements) (the contracts listed on Section 4.12(a) any its Subsidiaries is a party or by which it is bound as of the Seller Disclosure Letter together with contracts date of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the this Agreement constitutes a “Parent Material ContractsContract”)::
(i) any Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Entity and pursuant to which (A) Parent or any of its Subsidiaries will be required after the date of this Agreement to pay any monetary obligations or (B) that contains material obligations or limitations on the conduct of Parent or its Subsidiaries;
(ii) any Contract (A) by its terms limiting the freedom or right of Parent or any of its Subsidiaries or Affiliates to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by Parent or any of its Subsidiaries, or (C) containing exclusivity obligations or otherwise limiting the freedom or right of Parent or any of its Subsidiaries or Affiliates to sell, distribute or manufacture any products or services for any other Person;
(iii) any Contract that requires by its terms or is currently reasonably expected to result in require the payment or receipt delivery of cash or other consideration to Parent or any of its Subsidiaries in an amount having an expected value in excess of $100,000 in the fiscal year ending December 31, 2023 or by Parent or any of its Subsidiaries in an amount having an expected value in excess of $100,000 in the fiscal year ending December 31, 2023 and in each case which cannot be cancelled by Parent or its Subsidiaries without penalty or further payment without more than ninety (90) days’ notice;
(iv) any Contract relating to Indebtedness for borrowed money in excess of $100,000 (whether incurred, assumed, guaranteed or secured by any asset) of Parent or any of its Subsidiaries or creating any material Liens with respect to any assets of Parent or any of its Subsidiaries;
(v) any Contract with any Person constituting a joint venture, collaboration, partnership or similar profit sharing arrangement or requiring any Person to develop or commercialize any product, technology or service;
(vi) any Contract (excluding any Parent Plan) that by its express terms requires Parent or any of its Subsidiaries, or any successor to, or acquirer of, Parent or any of its Subsidiaries, to make any payment to another Person as a result of a change of control of Parent or any of its Subsidiaries, as applicable (a “Parent Change of Control Payment”) or gives another Person a right to receive or elect to receive a Parent Change of Control Payment;
(vii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the limited liability company interests, capital stock or other equity interests of Parent or its Subsidiaries, the pledging of the limited liability company interests, capital stock or other equity interests of Parent or its Subsidiaries or the issuance of any guaranty by Parent or any of its Subsidiaries;
(viii) any material (A) in-bound license (other than Commercially Available Software) and (B) out-bound license of Intellectual Property Rights (other than non-exclusive licenses granted by Parent or any of its Subsidiaries in the ordinary course of business);
(ix) any Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms;
(x) any Contract relating to the disposition or acquisition of assets or rights (including equity interests) except for sales of inventory in the ordinary course of business;
(xi) any Contract pursuant to which Parent or any of its Subsidiaries leases or subleases any material real property;
(xii) any Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Parent in connection with this Agreement and the transactions contemplated hereby;
(xiii) any Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Parent or any of its Subsidiaries; or
(xiv) any Contract requiring payment by or to the Parent or any of its Subsidiaries after the date of this Agreement in excess of $100,000 pursuant to 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 Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Parent 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 Business Parent or any of more than $1,000,000 its Subsidiaries; or (D) license granted to any third party to manufacture or produce any product, service or technology of the Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Parent or any of its Subsidiaries, in the current fiscal year or in any one-year period over its remaining termeach case, other than purchase orders except for Contracts entered into in the ordinary course of business consistent with past practice;
(iixv) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as granting a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal refusal, right of first offer, or other similar rights right with respect to any assets of a Person or that contains any provision requiring the purchase any of the Business’ assets, properties all or businesses;
(x) any Contract entered into with the customers or suppliers a material portion of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing requirements for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any given product or service from such another Person, ; or
(xvi) any other Contract that contain “take or pay” provisions is currently in effect and is required to be filed by Parent as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that contain minimum purchase requirements;
(xiii) any Contract which involves would be required to be disclosed under Item 404 of Regulation S-K under the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessSecurities Act.
(b) Section 4.12(b(i) of the Seller Disclosure Letter sets forth a complete Each Parent Material Contract is valid and correct list, as of the date hereof, of each Contract pursuant to which Seller or binding on Parent and any of its Subsidiaries (other than a Transferred Entity) to the extent such Subsidiary is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection withthereto, as contemplated by or otherwise related applicable, and to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms Knowledge of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s KnowledgeParent, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
(e, subject to the Enforceability Exceptions;(ii) Neither Seller nor any Parent and each of its Subsidiaries is in breach or default under any Material Contract Subsidiaries, and, to the Knowledge of SellerParent, no each other party thereto, has performed all material obligations required to be performed by it under each Parent Material Contract; and (iii) there is no material default under any such Parent Material Contract is in breach by Parent or default thereunderany of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, and to SellerParent’s Knowledge Knowledge, no event or condition has occurred and is continuing that constitutes or would constitute (with or without constitutes, or, after notice or lapse of time or both), would constitute, a breach or material default on the part of Seller Parent or any of its SubsidiariesSubsidiaries or, or to the Knowledge of Parent, any other party to thereto under any such Parent Material Contract, nor has Seller Parent or any of its Subsidiaries received any written notice of any such breach, material default, event or condition. Parent has furnished or made available to the Company true and complete copies of all Parent Material Contracts, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectincluding all amendments thereto.
Appears in 2 contracts
Samples: Merger Agreement (Diffusion Pharmaceuticals Inc.), Merger Agreement (Diffusion Pharmaceuticals Inc.)
Contracts. (a) Section 4.12(a) 3.9 of the Seller Disclosure Letter contains a complete and accurate list of all Contracts to which an Acquired Company, the Satair JV, Seller or any Selling Subsidiary (orwith respect to Seller and the Selling Subsidiaries, as applicableto the extent the Contract is included in the Air Cargo Assets) is a party: (a) for the future sale of products or services with expected payments in excess of $2,500,000 during the remaining term; (b) for the future purchase of products or services with expected payments in excess of $1,000,000 during the remaining term except for any such Contract that may be canceled on not more than 180 days’ notice without any penalty or other liability to the Business in excess of $100,000; (c) establishing or governing the management of any partnership, contains a cross-reference joint venture or similar arrangement, or acquisition or disposal of any joint ventures or similar arrangement; (d) that require the Business to another Section deal exclusively with the counterparty or that limit the ability of the Seller Disclosure Letter that lists)Business to compete in any product or geographic market; (e) for the lease of any personal property involving annual lease payments in excess of $75,000 per year; (f) relating to the purchase of any business or Person (or all or any substantial portion of the assets of any business, organized according to each subsection business unit, facility or Person) entered into within three (3) years from the date of this Section 4.12(aAgreement and under which any Acquired Company or the Satair JV has any continuing material liability or obligation; (g) which applies relating to such Contract, the sale or disposition of each of the following Transferred Contracts any material Business Assets (other than Real Property Leases, Benefit Plans the sale of inventory or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms obsolete or is currently expected to result in the payment or receipt by the worn-out Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into Assets replaced in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with within three (x3) an Affiliateyears from the date of this Agreement and under which any Acquired Company or the Satair JV has any continuing material liability or obligation; (h) relating to any employment, officer independent contracting, consulting or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled similar agreement requiring payment by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with of base annual fees or compensation in excess of $100,000 to any Person Person; (i) evidencing Indebtedness; and (j) providing for capital expenditures after the date of this Agreement in excess of $100,000, individually. The Contracts listed (or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected required to be material to the Business, taken as a whole;
(ivlisted) any Contract entered into with the customers or suppliers of the Business listed on in Section 4.17 and 4.18 3.9 of the Seller Disclosure Letter pursuant are referred to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations collectively herein as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Significant Contracts”).
(c) Except for terminations ” Each Significant Contract is valid and is in full force and effect in accordance with the terms of such Material Contracts after Significant Contract subject to proper authorization and execution of such Significant Contract by the date hereofcounterparties thereto and to the Bankruptcy and Equity Principles and neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will give others any rights of termination or cancellation of any Significant Contract. There is no material breach or material default under any Significant Contract, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect no event has occurred that, individually or in with the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse passage of time or the giving of notice or both), would constitute a material breach or material default on by Seller, an Acquired Company, the part of Seller or Satair JV, any of its Subsidiaries, Selling Subsidiary or any other party thereto under, or give to such Material others any rights of termination or cancellation of (other than rights relating to contractual expiration), any Significant Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Purchase Agreement (Aar Corp), Purchase Agreement (Teleflex Inc)
Contracts. (a) Section 4.12(a2.15(a) of the Seller Company Disclosure Letter contains Schedule sets forth a list (ortrue and complete list, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement, of each of the following Transferred Contracts (other than Real Property Leaseseach, Benefit Plans or Employment Agreementsa “Fleet Material Contract”) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to which any Fleet Subsidiary or, to the Closing Date are collectively referred extent such Contract is used in or necessary to herein as operate the “Material Contracts”):Fleet Business, the Company or any Non-Fleet Subsidiary is a party or is bound, but excluding all Financing Agreements:
(i) any Contract that is required Lease Agreement pursuant to which a Customer was among the top 100 of all Customers by its terms or is currently expected to result in combined leasing and servicing xxxxxxxx during the payment or receipt by the Business trailing 12 months as of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining termApril 30, other than purchase orders entered into in the ordinary course of business consistent with past practice2014;
(ii) any Contract entered into with (x) an Affiliatea vendor of the Fleet Business pursuant to which such vendor was among the top 75 of all such vendors by annual cost during the trailing 12 months as of April 30, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity2014;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, relating to Indebtedness (other than any such restrictions capital lease) or that are not and would not reasonably be expected to be material to the Businessincludes guarantees, taken as a wholesureties or similar obligations;
(iv) any Contract entered into with containing a non-competition or non-solicitation covenant or similar provision that limits or purports to limit the customers operation or suppliers conduct of the Business listed Fleet Business, including the ability to compete in any line of business or with any other Person or in any geographic area or during any period of time, other than such Contract that, following the Closing, would be terminable by Buyer or its Subsidiaries without liability, payment or continuing obligation on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person60 days’ notice or less;
(v) all Contracts pursuant to which Sellerany joint venture, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms)partnership, (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure limited liability or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)similar Contract;
(vi) any joint ventureContract relating to the acquisition or disposition of any Person, limited liability company business or partnership Contract with any third-party involving a sharing material assets outside the ordinary course of profits, revenue or expensesbusiness;
(vii) any Contract evidencing an outstanding loan, advance (excluding off-the-shelf software licenses) pursuant to which the Company or investment by the Business any of its Subsidiaries has granted to or in any Personthird party, or guarantee has been granted by the Business of the obligations of any Person in respect of third party, any Liability of such Person, including letters of credit and surety bonds, license or other than Contracts that will be terminated pursuant right to and in accordance with Section 6.07(b)use any material Intellectual Property;
(viii) any Contract granting any other party to make capital expenditures in excess of $1,000,000such Contract or a third party “most favored nation” status, other than such Contract that, following the Closing, would be terminable by Buyer or its Subsidiaries without liability, payment or continuing obligation on 60 days’ notice or less;
(ix) any Contract providing that provides for the grant to “exclusivity” or any third-party similar requirement in favor of any right of first refusal Person other than the Fleet Subsidiaries, or other similar rights to purchase any under which the operation or conduct of the BusinessFleet Business is restricted, other than such Contract that, following the Closing, would be terminable by Buyer or its Subsidiaries without liability, payment or continuing obligation on 60 days’ assets, properties notice or businessesless;
(x) any Contract entered into with any Fleet Employee that provides for compensation or other payments to such Fleet Employee in excess of $200,000 per year over the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor term of such PersonContract;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;CBA; and
(xii) any Contracts entered into with Contract between the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller Company or any of its Subsidiaries; and
(xiv) Non-Fleet Subsidiary, on the one hand, and any Contract with any employee leasing Fleet Subsidiary or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Fleet Business, on the other hand.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth The Company has made available to Buyer a true and complete and correct list, as of the date hereof, copy of each Fleet Material Contract. Each Fleet Material Contract pursuant to which Seller is valid and binding on the Company or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms thereto and, to Sellerthe Company’s Knowledge, each other party thereto, and is in full force and effect subject and enforceable in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and accordance with its terms (subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Lawthe Bankruptcy and Equity Exception), except for such failures where the failure to be a legalvalid, valid binding, enforceable and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Fleet Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, Except as otherwise set forth in each case, as amended, supplemented or otherwise modified through (and includingSection 2.15(b) the date of this Agreement.
(d) As of the date hereofCompany Disclosure Schedule, none of Sellerthe Company or any of its Subsidiaries or, any Subsidiary of Seller, or to Sellerthe Company’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such a Fleet Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time time, or both)) and there is not, to the Company’s Knowledge, any event or circumstance that would become a breach or default on (with or without notice or lapse of time, or both) by the part of Seller Company or any of its Subsidiaries, Subsidiaries or any other party to thereto, except in each case for any such breach or default that would not have a Fleet Material ContractAdverse Effect. Except as otherwise set forth in Section 2.15(b) of the Company Disclosure Schedule, nor has Seller none of the Company or any of its Subsidiaries has received any written notice of termination of a Fleet Material Contract.
(c) A Fleet Subsidiary is a party to each Lease Agreement. Each Lease Agreement constitutes and arose out of a bona fide business transaction entered into in the ordinary course of business consistent with past practice. Other than pursuant to the Financing Agreements, no Lease Agreement is subject to any such breachdebt subordination agreement, defaultparticipation agreement, event intercreditor agreement, owner trust agreement or condition, exceptcollateral sharing agreement.
(d) Section 2.15(d) of the Company Disclosure Schedule sets forth a complete and correct report, in each caseall material respects, for any such breachas of April 30, default2014, event of total delinquencies of Lease Agreements with respect to which the lessee, obligor or condition that individually or borrower thereunder is delinquent in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectpayment of any scheduled payment thereunder by more than 60 days.
Appears in 1 contract
Samples: Stock Purchase Agreement (PHH Corp)
Contracts. (a) Section 4.12(a3.10(a) of the Seller Disclosure Letter contains sets forth, as of the date of this Agreement, those Contracts in effect as of the date of this Agreement to which any Business Group Member is a list party to or is bound by and that is any of the following, but excluding in each case (x) any Benefit Plan and (y) any Contract that is an Excluded Asset or not primarily related to the Business and to which the Transferred Company will not be a party after giving effect to the Pre-Closing Actions and for which neither the Transferred Company nor the Purchaser will be subject to any liability or obligation after the Closing, and that does not impose a Lien on any Transferred Equity Interest or Business Asset:
(i) Contract relating to the acquisition or disposition of any material assets (whether by merger, sale of stock or other equity, sale of assets or otherwise) not yet consummated or pursuant to which the Transferred Company will have material continuing obligations following the date of this Agreement after giving effect to the Pre-Closing Actions;
(ii) Contract under which the Transferred Company (or, as applicableto the extent such Indebtedness constitutes an Assumed Liability, contains a cross-reference to another Section any other Business Group Member) has borrowed any money from, or issued any note, bond, debenture or other evidence of the Seller Disclosure Letter that lists)Indebtedness to, organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts any Person (other than Real the Transferred Company (or such other Business Group Member)), in any such case which, individually, is in excess of $2,500,000;
(iii) Contract under which (A) any Person, other than the Transferred Company, has directly or indirectly guaranteed Indebtedness for borrowed money of the Transferred Company or (B) the Transferred Company (or, to the extent such Indebtedness constitutes an Assumed Liability, any other Business Group Member) has directly or indirectly guaranteed Indebtedness for borrowed money of any Person, other than the Transferred Company (or such other Business Group Member), in any such case where such Indebtedness, individually, is in excess of $2,500,000;
(iv) Contract under which any Business Group Member, directly or indirectly, has made or is required to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than extensions of trade credit given in the ordinary course of business), in any such case which, individually, is in excess of $2,500,000;
(v) Shared Contract that is material to the Business;
(vi) joint venture, partnership or other similar Contract involving co-investment between any Business Group Member and a third party, or other agreement for the sharing of profits or losses of any component or aspect of the Business;
(vii) Contract granting any third party the right to use any Business Intellectual Property, or granting any Business Group Member the right to use any Intellectual Property Leasesowned by a third party, Benefit Plans other than (A) non-disclosure and confidentiality agreements, (B) Contracts for any off-the-shelf, commercially available Software (including shrink wrap or Employment Agreementsclick wrap agreements) and (C) Contracts granting non-exclusive licenses of any such Business Intellectual Property or any such Intellectual Property owned by a third party in the contracts ordinary course of business;
(viii) Contract entered into since January 1, 2021 involving any resolution or settlement of any actual or threatened Proceeding which imposes monetary obligations in excess of $2,500,000 or which imposes non-monetary obligations (other than customary confidentiality obligations) on any Business Group Member;
(ix) Contract or series of related Contracts requiring capital expenditures of more than $2,500,000 in any calendar year;
(x) Contract with a Material Customer or a Material Supplier;
(xi) Contract not otherwise listed above that would reasonably be expected to require payments to or from any Business Group Member in excess of $2,500,000 per annum and that is not terminable by either the counterparty or any Business Group Member on less than 90 calendar days prior notice for a reasonably estimated cost of less than $1,000,000;
(xii) each Contract materially limiting in any way the ability of a Business Group Member to compete with any Person in any particular geographic location or line of business or granting any exclusive distribution or resale rights in any market, field or territory;
(xiii) each Contract containing a “most favored nation” clause or any clause requiring the purchase or sale of minimum quantities (or payment of any amount for failure to purchase or sell any specific quantities);
(xiv) each collective bargaining agreement or other similar Contract with any labor organization, union, group or association covering Business Employees;
(xv) employment agreements that provide for: (A) a term of employment or (B) severance or other payments due upon termination (other than wages earned through the date of termination or pursuant to generally applicable severance policies); and
(xvi) independent contractor or consulting agreements which provide for any natural person engaged as an independent contractor or consultant of the Business to receive compensation at an annual rate in excess of $500,000. Any of the Contracts of the types described above in Section 4.12(a3.10(a), regardless of whether entered into prior to or after the date hereof or listed in Section 3.10(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively Letter, shall be referred to herein as the “Material Contracts”):.
(ib) any Contract that is required by its terms or is currently expected to result All Material Contracts are valid, binding and in the payment or receipt full force and effect and are enforceable by the Business of more than $1,000,000 Group Members party thereto and identified therein in accordance with their terms, subject to the Bankruptcy Exceptions and except for such failures to be valid, binding, in full force and effect or enforceable that, individually or in the current fiscal year or in any one-year period over its remaining termaggregate, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
. Each Business Group Member party thereto has performed all obligations required to be performed by it under each Material Contract, and it is not (ivwith or without the lapse of time or the giving of notice, or both) in breach or default in any Contract entered into with respect thereunder and, to the customers or suppliers Knowledge of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or no other party to any other Person Material Contract is (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated without the lapse of time or the giving of notice, or both) in breach or default in any Productrespect thereunder, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) except in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assetsforegoing cases, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legalnoncompliance, valid breaches and binding obligation, enforceable, or in full force and effect defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a true, correct and complete and correct (i) copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through Contract and (and includingii) the date summary of this Agreement.
(d) As all of the date hereof, none material terms and conditions of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such each oral Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Martin Marietta Materials Inc)
Contracts. (a) Section 4.12(a3.15(a) of the Seller Disclosure Letter contains Schedules sets forth a list (orcomplete list, as applicableof the date hereof, contains of each Contract to which a cross-reference to another Section member of the Seller Disclosure Letter Group is a party (but only if such Contract primarily relates to or is primarily used or held for use in connection with the Business) or to which a Transferred Entity is a party:
(i) that lists(A) limits or purports to limit the ability of the Business to compete in any line of business, service or product or within any industry or geographical area, (B) grants exclusivity to any Person in respect of any product or service, (C) grants any right of first refusal, right of first offer or similar right to acquire exclusive rights or ownership with respect to any service, product or Intellectual Property and/or (D) grants “most favored nation” or similar rights to any Person, in the case of clauses (A), organized according to each subsection (B) and (C), other than Contracts entered into in the ordinary course of this Section 4.12(abusiness;
(ii) that expressly creates a partnership or joint venture or similar arrangement involving an investment or any sharing or profits, losses, costs or liabilities by the Business with any other Person;
(iii) under which applies to such Contract, of each any member of the following Transferred Contracts Seller Group has an outstanding obligation or liability, including any continuing indemnification obligation and any “earn-out” or similar contingent payment obligation, relating to the acquisition or disposition of any business or entity (whether by merger, sale of stock, sale of assets or otherwise);
(iv) for the purchase of materials, supplies, goods, equipment or services under which payments in excess of $1,000,000 were made by or on behalf of the Business during fiscal year 2018, other than any Contract that can be terminated by the Seller Group at will without premium or penalty on less than ninety (90) days’ notice;
(v) for goods and services provided by the Business under which the amount billed by the Business exceeded $1,920,000 during fiscal year 2018, other than any Contract that can be terminated at will without premium or penalty on less than ninety (90) days’ notice;
(vi) relating to Indebtedness having an outstanding principal amount, or the making of guarantees or loans by any member of the Seller Group, in each case, involving amounts in excess of $1,000,000;
(vii) that requires any outstanding capital commitment or capital expenditure by the Seller Group in respect of the Business of $1,000,000 or more, in the aggregate, other than any Contract that can be terminated by the Seller Group at will without premium or penalty on less than ninety (90) days’ notice;
(viii) that grants to any member of the Seller Group (A) ownership or exclusive rights to material Intellectual Property or (B) any other license to material Intellectual Property used in the Business, other than non-exclusive, commercially available software licenses with annual fees of less than $1,500,000;
(ix) that (A) grants an Encumbrance (other than Real Permitted Encumbrances) on all or any part of the tangible or intangible assets of the Transferred Entities or the Transferred Assets or (B) limits the ability of any Transferred Entity to incur Indebtedness, pay or make any dividends or distributions, or create Encumbrances on assets, rights or properties owned by any Transferred Entity;
(x) reflecting a settlement of any threatened or pending Action either (A) entered into since January 1, 2016 and under which a payment in excess of $1,500,000 was made by or on behalf of the Business or (B) containing continuing obligations or restrictions on the Business or any Transferred Entity; and
(xi) under which any member of the Seller Group has granted to any third party any right to use or exploit any Transferred Intellectual Property Leasesor Intellectual Property owned by the Transferred Entities, Benefit Plans whether by way of a license, covenant not to xxx or Employment Agreementsotherwise (other than or Contracts for the non-exclusive licenses to (A) customers solely for use of the Business Products in object-code or (B) resellers and distributors for the contracts listed purpose of reselling and distributing the Business Products, in each case granted in the ordinary course of business). The Contracts required to be set forth on Section 4.12(a3.15(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date Schedules are collectively referred to herein as the “Material Contracts”):.
(ib) any Contract that is required by its terms or is currently expected The Seller has delivered to result the Purchaser, in all material respects, true, correct and complete copies of each of the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining termMaterial Contracts, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing together with any Person material amendments, modifications or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and supplements thereto. Except as would not reasonably be expected to be material to the Business, the Transferred Entities and the Transferred Assets, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (Bi) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in is a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As agreement of the date hereofrelevant member of the Seller Group, none and to the Knowledge of the Seller, any Subsidiary of Sellerthe other parties thereto, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
, subject to the Enforceability Exceptions, (eii) Neither no member of the Seller nor any of its Subsidiaries Group is in breach of or default under any Material Contract to which it is a party, and, to the Knowledge of the Seller, no other party to any such Material Contract is in breach thereof or default thereunder, (iii) no member of the Seller Group has received from any counterparty any written notice of termination or written notice or written claim of default by such member of the Seller Group under any Material Contract and (iv) to the Knowledge of the Seller’s Knowledge , no event or condition has occurred and is continuing that constitutes or would constitute (that, with or without notice or lapse of time or both), would result in a breach or default on under any Material Contract by any member of the part of Seller or any of its SubsidiariesGroup. Notwithstanding the foregoing, or any other party the representations and warranties contained in this Section 3.15 do not apply to such Material Contractthe Transferred Real Property Leases, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, which are covered in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectSection 3.16.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Pitney Bowes Inc /De/)
Contracts. (a) Set forth in Section 4.12(a5.7(a) of the Seller Disclosure Letter contains Schedule is a list (or, of Contracts in effect as applicable, contains a cross-reference to another Section of the Seller Effective Date to which the Company or the Company Subsidiaries are parties which are in the categories listed below (other than the Real Property Leases and any Contract that is, or relates to, any Employee Plan) (the Contracts listed in Section 5.7(a) of the Disclosure Letter Schedule, together with the Real Property Leases, the Related Party Agreements and any Contract entered into after the date hereof that listswould be required to be disclosed in Section 5.7(a) of the Disclosure Schedule if entered into prior to the date hereof, the "Material Contracts"):
(i) each Contract under which the Company or the Company Subsidiaries have borrowed any money or issued any note, bond, debenture or similar instrument, or have directly or indirectly guaranteed any borrowed money of any other Person or any note, bond, debenture or similar instrument issued by any other Person, in any such case involving unpaid principal amounts in excess of $25,000, other than intercompany loans, advances or receivables (or guarantees thereof) (it being understood that "borrowed any money" does not include any accounts payable in the Ordinary Course of Business);
(ii) (A) each Contract pursuant to which the Company or any Company Subsidiary grants to any Person the option, organized according license or other right to use any Company Intellectual Property, other than non-exclusive licenses granted in the ordinary course in connection with the sale, distribution or marketing of Company's products, and (B) all Contracts pursuant to which the Company or any Company Subsidiary obtains the option, license or other right from any Person to use any Intellectual Property (other than for commercially available software with annual payments of less than $75,000);
(iii) each subsection Contract for capital expenditures or the acquisition or construction of this Section 4.12(afixed assets for the benefit and use of the Company or the Company Subsidiaries, the performance of which involves unpaid commitments in excess of $50,000;
(iv) each Contract with a Major Customer or Major Supplier (provided that standard purchase orders, sales orders or quotes with Material Customers or Material Suppliers do not need to be separately scheduled, but constitute Material Contracts);
(v) each Contract limiting the right of the Company or the Company Subsidiaries to engage in or compete with any Person in any business or in any geographical area or containing exclusivity or most favored nations terms or covenants;
(vi) each partnership or joint venture agreement (excluding any sub-contractor arrangements entered into in the Ordinary Course of Business in which applies the Company or the Company Subsidiaries is subcontracting services from others);
(vii) each Contract involving the acquisition or disposition by the Company or the Company Subsidiaries of any business enterprise whether via stock or asset purchase or otherwise which contains an ongoing obligation on the Company or the Company Subsidiaries;
(viii) each Contract, arrangement or commitment with a current officer, director, employee or independent contractor of the Company or the Company Subsidiaries who receives annual compensation (excluding bonus) in excess of $140,000, other than such Contracts that are terminable by the Company or the applicable Company Subsidiary at-will without triggering a notice period, severance or other similar obligations;
(ix) each Contract between the Company and an independent dealer, distributor or similar agent of the Company's products pursuant to which Contract the Company had sales to such dealer of $250,000 or more in calendar year 2020;
(x) any Contract for the purchase, sale, construction, repair or maintenance of inventory, raw materials, commodities, supplies, goods, products, equipment or other tangible property, or for the furnishing or receipt of services, in each case, which Contract provides for (or would be reasonably expected to involve) annual payments to or by an Acquired Company in excess of $100,000 or aggregate payments to or by an Acquired Company in excess of $100,000; and
(xi) each Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans relating to the lease or Employment Agreementslicense of any asset (other than Intellectual Property) with annual lease payments in excess of $50,000).
(the contracts listed on Section 4.12(ab) Each of the Seller Disclosure Letter together with contracts Material Contracts is in full force and effect and is a legal, valid and binding agreement of the type described in subclauses (i)-(xiii) entered into after Company or the date hereof and prior Company Subsidiaries, as applicable, and, to the Closing Date are collectively referred Company's Knowledge, each other party thereto, subject only to herein the General Enforceability Exceptions, and there is no material default or breach by the Company or the Company Subsidiaries, as applicable, or, to the “Material Contracts”):
(i) Company's Knowledge, any Contract that is required by its terms or is currently expected to result other party, in the payment timely performance of any obligation to be performed or receipt by paid thereunder or any other material provision thereof. Except for the Business cancellation, modification and resubmission of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) , the Company has not received any Contract entered into with (x) an Affiliatewritten, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operatesor, other than any such restrictions that are not and would not reasonably be expected to be material to the BusinessCompany's Knowledge, taken as a whole;
(iv) any Contract entered into oral, notices of termination, non-renewal or other notices of material change with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or respect to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Material Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller The Company has made available to Purchaser the Buyer a true and complete and correct copy of each written Material ContractContract existing on the date hereof, in each case, as amended, supplemented amended or otherwise modified through (and including) in effect. The Company has delivered to the date of this Agreement.
(d) As Buyer a written summary setting forth all of the date hereof, none material terms and conditions of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such each oral Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Contracts. (a) Except as set forth on Section 4.12(a4.6(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another any Contract specified in Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a4.6(a) of the Seller Disclosure Letter together with contracts is referred to as a “Transferred Material Contract”), no Transferred Contract in effect as of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):of this Agreement constitutes:
(i) any Contract to which any Seller Party or any of their respective Affiliates is a party limiting in any material respect the right of any Seller Party to engage in any material line of business or to compete with any Person, in each case which would apply to the activities of Purchaser after the Closing with respect to the Purchased Assets;
(ii) a lease, sublease or similar Contract with any Person under which (A) any Seller Party is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) any Seller Party is a lessor or sublessor of, or makes available for use by any Person, any machinery, equipment, vehicle or other tangible personal property owned or leased by any Seller Party in any such case that has an aggregate future liability or receivable, as the case may be, in any fiscal year in excess of $150,000 and is required not terminable by its terms the applicable Seller Party, as the case may be, by notice of not more than 45 days for a cost of less than $150,000;
(iii) (A) a Contract for the purchase or sale by any Seller Party of materials, supplies, equipment, services, inventory, or Purchased Assets, (B) a management, consulting or other Contract for services to be provided to or by any Seller Party, or (C) an advertising agreement or arrangement, in any such case that has an aggregate future liability in any fiscal year to any Person in excess of $150,000 and is currently expected to result not terminable by the applicable Seller Party, as the case may be, by notice of not more than 30 days;
(iv) a Contract (including any take or pay or keepwell agreement) under which (A) any Person has guaranteed indebtedness, liabilities or obligations of any Seller Party or (B) any Seller Party has guaranteed indebtedness, liabilities or obligations of any other Person (in each case other than endorsements for the purpose of collection in the payment ordinary course of business), in each case in excess of $100,000 individually or receipt by the Business of more than $1,000,000 300,000 in the current fiscal year aggregate;
(v) a Contract between any Seller Party and any other Person, regarding an advance, loan, extension of credit, capital contribution, or in any one-year period over its remaining term, other investment (other than purchase orders entered into extensions of trade credit in the ordinary course of business and loans to employees in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director practice not in excess of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000100,000 per employee) in excess of $100,000 individually or $300,000 in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)aggregate;
(vi) a Contract granting a Lien upon any joint ventureproperty (tangible or intangible) used in connection with the Business or any other Purchased Asset which Lien secures an obligation in excess of $150,000, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expensesother than Permitted Liens;
(vii) a Contract with (A) any Contract evidencing an outstanding loanSeller Party or (B) any shareholder, advance officer, director, employee or investment by the Business to or in any Person, or guarantee by the Business of the obligations Affiliate of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)Seller Party;
(viii) a Contract providing for the services of any Contract to make capital expenditures broker, dealer, distributor, sales representative, franchise, agency or similar representative, the terms of which provide for financial commitments in excess of $1,000,000150,000 by any Seller Party;
(ix) a Contract to which any Contract providing for Seller Party is a party pertaining to the grant Business that is material to any third-party the Business and not made in the ordinary course of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;business; or
(x) any Contract entered into with the customers or suppliers of the a Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it Intellectual Property License that is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a All Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofare valid, each Material Contract is a legal, valid binding and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases with respect to applicable bankruptcythe Seller Parties party thereto, insolvencyas the case may be, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effectbeen amended or modified in any material respect except as set forth therein. Seller has made available to Purchaser a or its counsel true, complete and correct copy copies of each written all Transferred Material Contract, Contracts as in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of effect on the date hereof. Each Seller Party party thereto has performed all material obligations required to be performed by it under the Transferred Material Contracts, none and it is not (with or without the lapse of Seller, any Subsidiary time or the giving of Sellernotice, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or both) in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in material breach or material default under any Material Contract thereunder and, to the Knowledge knowledge of Seller, no other party to any such Transferred Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or the lapse of time or the giving of notice, or both), a ) in material breach or material default on thereunder.
(c) Notwithstanding the part foregoing, the provisions of this Section 4.6 shall not apply to Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, Plans (which are addressed in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectSection 4.11).
Appears in 1 contract
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of Schedule 2.18 lists each of the following Transferred Contracts Contractual Obligations to which the Company or any Subsidiary is bound (other than Real Property Leaseseach, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the a “Material ContractsDisclosed Contract”):
(i) any Contract that is required Contractual Obligation with respect to a dealer, distributor, referral, or similar agreement, or any Contractual Obligation providing for the grant by the Company of rights to market or sell Company Services on behalf of the Company to any other Person, in each case having consideration paid or payable by the Company or its terms or is currently expected to result Subsidiaries in an amount exceeding $250,000, in the payment aggregate, during the 12-month period ending December 31, 2020;
(ii) any Contractual Obligation pursuant to which a partnership or receipt by the Business of more than $1,000,000 in the current fiscal year or in joint venture was established;
(iii) any one-year period over its remaining term, Contractual Obligation made other than purchase orders entered into in the ordinary course of business consistent (x) providing for the grant of any preferential rights of first offer or first refusal to purchase or lease any material asset, (y) providing for any exclusive right to sell or distribute, or otherwise relating to the sale or distribution of, any Company Service, or (z) pursuant to which any other Person is granted “most favored nation” pricing or customer status or similar with past practicerespect to any Company Services;
(iiiv) any Contract entered into with Contractual Obligation (xother than “shrink wrap” and similar generally available commercial end-user licenses to software) an Affiliate, officer or director of Seller pursuant to which the Company or any Subsidiary is a party and pursuant to which the Company or any Subsidiary licenses any Intellectual Property used in the development or licensing of the Company Services, in each case, that is material to the business of the Company and its Subsidiaries, taken as a whole;
(v) any Contractual Obligation containing any indemnification, warranty, support, maintenance, or service that represents a material obligation of the Company or any Subsidiary to pay an amount in excess of $250,000;
(vi) 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 base compensation to any officer, director, employee or consultant in excess of $250,000 per year;
(vii) any collective bargaining agreement with any labor union;
(viii) any Contractual Obligation that (A) purports to materially limit either the type of business in which the Company or any Subsidiary (or, after the Closing, Parent or one of its Subsidiaries or Parent’s successors or assigns) may engage, the geographic area in which any of them may engage in any business, the solicitation by any of them of the employment of any Transferred Entity Person or the ability of any of them to sell or purchase from any Person, or (yB) would require the disposition of any entity controlled by an officer material assets or director line of Seller business of the Company or any Subsidiary (or, after the Closing, Parent or one of its Subsidiaries or of any Transferred EntityParent’s successors or assigns);
(iiiix) any Contract that restricts Contractual Obligation relating to the Business from competing with incurrence of any indebtedness for borrowed money in excess of $250,000;
(x) any Contractual Obligation relating to the acquisition by merger, consolidation, equity or asset purchase, or any other manner of any Person or engaging in any a line of business or activity in of any geographic region in Person outside the ordinary course of business and pursuant to which the Business operatesCompany has any continuing payment obligations;
(xi) any Contractual Obligation under which the Company or any Subsidiary has advanced or loaned an amount to, or received a loan, note, or other instrument, agreement, or arrangement for or relating to the borrowing of money from, any of its shareholders, employees, managers, officers or members of the board of directors;
(xii) any Contractual Obligation (or group of related Contractual Obligations) the outstanding performance of which mandates future payment of consideration in excess of $500,000 per annum, other than (A) any Contractual Obligation that is terminable by the Company or applicable Subsidiary at will on less than ninety (90) days’ notice and (B) purchase orders received in the ordinary course of business;
(xiii) any guaranty by the Company, Subsidiary, or any Affiliate of any obligation of another in excess of $250,000; and
(xiv) any Contractual Obligation requiring the Company to register any equity interests under the applicable United States securities Laws.
(b) The Company has made available to Parent accurate and complete copies of each Disclosed Contract, in each case, as amended or otherwise modified and currently in effect. Each Disclosed Contract is in full force and effect and is enforceable against each party to such Contractual Obligation, except where any such restrictions that failure would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Neither the Company, any Subsidiary, nor, to the Company’s Knowledge, any other party to any Disclosed Contract is in breach or violation of, or default under, or has repudiated any provision of, any Disclosed Contract, and no event has occurred which with notice or lapse of time or both would become a breach of or default under any Disclosed Contract, in each case as except for such breach, violation, default or lapse which would be, individually or in the aggregate, material to the Company or its Subsidiaries, taken as a whole.
(c) Except as set forth in Schedule 2.18(c), all Disclosed Contracts are being performed without any party thereto relying on any force majeure provisions to excuse non-performance or performance delays arising out of the COVID-19 pandemic or COVID-19 Measures, except where such reliance on, non-performance, or delay was not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect thatbe, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, material to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, Company and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have taken as a Material Adverse Effectwhole.
Appears in 1 contract
Contracts. (a) Section 4.12(a3.11(a) of the Seller Company Disclosure Letter contains Schedule identifies each material agreement to which the Company is a list party.
(or, as applicable, contains a cross-reference to another b) Except for agreements listed in Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a3.11(b) of the Seller Company Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):Schedule:
(i) any Contract The Company has no agreements, contracts or commitments that is required call for prospective fixed and/or contingent payments or expenditures by its terms or is currently expected to result in the payment or receipt by the Business Company of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, 50,000 other than purchase orders those entered into in the ordinary course of business consistent with past practiceits business;
(ii) any Contract entered into with (x) an AffiliateThe Company has no purchase agreement, officer contract or director commitment that calls for fixed and/or contingent payments by the Company that are in excess of Seller or any the normal, ordinary and usual requirements of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitythe Company’s business;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that There are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers no outstanding agreements of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) Company that is not distributed with or incorporated in any Productreasonably likely to result, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, either individually or in the aggregate, have not had and would not reasonably be expected to have a in any Material Adverse Effect. Seller Change with respect to the Company upon completion or performance thereof;
(iv) The Company has made available to Purchaser a complete no outstanding agreements, contracts or commitments with its officers, employees, agents, consultants, advisors that are not cancelable by it on notice of not longer than thirty days and correct copy without liability, penalty or premium exceeding $50,000 in any single instance or $75,000 in the aggregate;
(v) The Company has not entered into any independent contractor or similar agreement, contract or commitment with any Person other than its officers, employees, agents, consultants, and advisors that is not terminable on not more than thirty days’ notice without penalty or liability of each written Material Contractany type, including without limitation severance or termination pay;
(vi) The Company has no collective bargaining or union agreements, contracts or commitments;
(vii) The Company is not restricted by agreement from competing with any person, from carrying on its business anywhere in each case, as amended, supplemented the world or otherwise modified through operating its business in any manner it deems appropriate;
(and includingviii) The Company has not guaranteed any obligations of other Persons or made any agreements to acquire or guarantee any obligations of other Persons; and
(ix) The Company has no outstanding loan or advance to any Person; nor is it party to any line of credit, standby financing, revolving credit or other similar financing arrangement of any sort that would permit the date borrowing by the Company of this Agreementany sum not reflected in the Company Financial Statements.
(dc) As The Company has delivered to the Purchaser accurate and complete copies of all written contracts identified in Section 3.11(a) and (b) of the date hereofCompany Disclosure Schedule, none including all amendments thereto. Sections 3.11(a) and (b) of Seller, the Company Disclosure Schedule contain a complete list of all the material contracts to which the Company is a party. The Company has not entered into any Subsidiary material oral contracts. Each contract identified in Sections 3.11(a) and (b) of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such the Company Disclosure Schedule (a “Company Material Contract”) is valid and in full force and effect, in each case other than any termination at is enforceable by the end of such Material Contract’s term Company in accordance with its terms, subject to (i) laws of general application relating to insolvency and the relief of debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, and will continue to be so immediately following the Closing Date. No such contract, agreement or instrument contains any liquidated damages, penalty or similar provision. To the Company’s knowledge, no party to any such contract, agreement or instrument intends to cancel, withdraw, modify or amend such contract, agreement or instrument.
(ei) Neither Seller nor The Company has not violated or breached, or committed any of its Subsidiaries is in breach or default under under, any Company Material Contract in any material respect, and, to the Knowledge of SellerCompany’s knowledge, no other party to Person has violated or breached, or committed any such default under, any Company Material Contract is in breach or default thereunderany material respect; and
(ii) to the Company’s knowledge, no event has occurred, and to Seller’s Knowledge no event circumstance or condition has occurred and is continuing exists, that constitutes or would constitute (with or without notice or lapse of time time) will, or both)could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Company Material Contract, (B) give any Person the right to declare a default or default on exercise any remedy under any Company Material Contract, (C) give any Person the part right to accelerate the maturity or performance of Seller any Company Material Contract or (D) give any Person the right to cancel, terminate or modify any Company Material Contract.
(e) None of the Company Material Contracts contains any provision which would require the consent of third parties to the sale and issuance of the Preferred Units or any of its Subsidiaries, the other transactions as contemplated hereunder or any other party to such Material Contract, nor has Seller or under any of its Subsidiaries received any notice the Related Agreements or which would be altered as a result of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effecttransaction.
Appears in 1 contract
Samples: Securities Purchase Agreement (FCStone Group, Inc.)
Contracts. (a) Section 4.12(a4.20(a) of the Seller Company Disclosure Letter contains a list (or, Schedule sets forth as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement a true, correct and complete list of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses Company (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the collectively, “Material Contracts”):
(i) (A) any Contract for the employment of any Person (whether on a full-time or part-time basis), other than Contracts for employment “at will” which do not restrict the Company’s ability to terminate the employment of any employee at any time for any lawful reason without penalty or severance obligations; and (B) any Contract providing for the payment of any cash or other compensation or benefits upon the consummation of the Transactions;
(ii) any Contract relating to Indebtedness or Liens on assets of the Company;
(iii) any Contract under which the Company 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 $10,000; or (B) lessor of or permits any third party to hold or operate any personal property owned or controlled by the Company;
(iv) any Real Property Leases;
(v) collective bargaining agreements or any other agreements with any Labor Organization;
(vi) any Contract or arrangement involving a partnership or joint venture;
(vii) any Contract, including letters of intent, relating to the acquisition of the business or capital stock or assets of another Person (whether by merger, sale of equity, sale of assets or otherwise);
(viii) any Contract which involved payment(s) to or from the Company in excess of $50,000 during the Company’s fiscal year 2019 or which is reasonably expected to involve payment(s) to or from the Company in excess of $50,000 during the Company’s fiscal year 2020;
(ix) all Contracts disclosed on Section 4.18 of the Company Disclosure Schedule;
(x) any Contracts containing a “most-favored-nations” clause or similar pricing preference;
(xi) any Contracts containing covenants purporting to limit the Company’s freedom to (A) do business or compete with any Person in any line of business or in any area or territory (including Contracts requiring the Company to deal exclusively with one party), or (B) solicit or hire any person for employment or to provide services;
(xii) any Contracts not terminable or cancelable by the Company upon notice of no longer than thirty (30) days and without liability, penalty or premium;
(xiii) any Contracts with Customers and Suppliers of the Company, specifically identifying (A) any Contracts the terms of which have changed since December 31, 2019 and (B) any Contracts with Customers for services to be provided by the Company after the Closing Date payment for which has been received prior to the Closing Date;
(xiv) any Contract with a Government Entity;
(xv) any Contract pursuant to which the Company has loaned money to any Person (other than granting ordinary course payment terms in connection with sales of products or services);
(xvi) any Contract that is required by its relates to the sale of assets outside the ordinary course of business;
(xvii) any Contract for the sale of products or services that provides warranty terms or is currently expected materially different from the standard warranty terms provided to result in the payment or receipt by Buyer prior to the Business of more than $1,000,000 in the current fiscal year or in Closing; and
(xviii) any one-year period over its remaining term, other than purchase orders entered into Contracts which were not made in the ordinary course of business consistent with past practice;.
(iib) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material With respect to the Businessforegoing Contracts, taken as the Company has provided to the Buyer a whole;
(iv) any true, correct and complete copy of each such Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Sellerand, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to itAgreement, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid valid, binding, and binding obligation of Seller or one of its Subsidiaries, enforceable (assuming the enforceability against all other parties to such Person Contract) in accordance with its terms and, to Seller’s Knowledge, each other party theretoterms, and is in full force and effect subject in all cases to effect, except as such enforceability may be limited by (i) applicable insolvency, bankruptcy, insolvency, reorganization, moratorium moratorium, or other similar Laws affecting creditors’ rights generally and subject to general (ii) applicable equitable principles of equity, regardless of (whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, Law or in full force and effect thatequity). The Company is not nor, individually or in to the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to SellerCompany’s Knowledge, is any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than default, violation or breach of, or has committed or failed to perform any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract andact which, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or notice, lapse of time or both)both would constitute a material default under the provisions of, a breach or default on the part of Seller or any of its Subsidiariesthe foregoing Contracts, nor has the Company received any notice that it has breached, violated or defaulted under any of the foregoing Contracts. The Company has not received any outstanding notice of cancellation or termination in connection with any of the foregoing Contracts and the Company does not nor, to the Company’s Knowledge, does any other party currently contemplate any termination, material amendment or change to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 1 contract
Contracts. a. Except for (ai) Section 4.12(aContracts relating to the Preliminary Transactions, (ii) Contracts that are Excluded Assets or Excluded Liabilities and (iii) Contracts set forth on Schedule 4.15, true and complete copies of which have been made available to Purchaser, (the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists“Scheduled Contracts”), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of neither the following Transferred Contracts Company nor any Acquired Company is a party to:
i. any Contract (other than Real Property Leasesany raw material, Benefit Plans supply or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) procurement Contract entered into after in the date hereof and prior Ordinary Course of Business) that involves the purchase or sale of goods or services with a value, or involving payments by or to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) Company or any Contract Acquired Company, of more than $1,000,000 per year and that is required by its terms or is currently expected to result in the payment or receipt not terminable by the Business Company or an Acquired Company upon less than twelve (12) months’ notice;
ii. any employment or consulting agreement having a remaining term of at least one (1) year and requiring payments of base salary in excess of $100,000 per year or aggregate payments under any such agreement in excess of $100,000;
iii. any stock option, equity based, share purchase, profit sharing, deferred compensation, bonus or other incentive compensation Contract or plan;
iv. any note, mortgage, indenture or other obligation or agreement or other instrument for or relating to indebtedness for borrowed money (including capitalized lease obligations), or any guarantee of third party obligations, of more than $1,000,000 in the current fiscal aggregate, but excluding intercompany indebtedness solely between or among the Company and one or more of the Acquired Companies;
v. any collective bargaining agreement with any labor unions or associations representing employees of the Company or any Acquired Company;
vi. any Real Property Lease, lease of personal property or license or other agreement granting a right to use any such property as lessee having a remaining term of at least one (1) year and with an annual base rental obligation of more than $1,000,000 or in a total remaining rental obligation of more than $1,000,000;
vii. any oneagreement pursuant to which the Company or any Acquired Company has licensed as licensee third party software material to the Business, except for widely available third party software which is of an “off-year period over its remaining termthe-shelf” nature and not modified or customized;
viii. any material license, assignment, transfer or similar Contract pursuant to which any third party has rights to use or own any material Applied for and Registered Intellectual Property or material Proprietary Rights of the Company or any Acquired Company;
ix. other than purchase orders entered into in the ordinary course organizational documents of business consistent with past practicethe Acquired Companies, any limited liability company, joint venture or partnership agreement;
(ii) x. any Contract entered into with (x) an Affiliate, officer or director agreement limiting the freedom of Seller the Company or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business Acquired Company from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than area or to compete with any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) xi. except as set forth on general commercial terms and that continues to be widely available on such commercial termsSchedule 4.15(a)(xi), (B) that is not distributed with or incorporated in any Product, (C) that is used agreement which provides for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, loan or advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit (excluding advances for travel and surety bonds, other than Contracts that will be terminated pursuant to and entertainment expenses made in accordance with Section 6.07(bcustomary policies for such advances), in any amount in excess of $100,000 and to any shareholder, director, member of the board of managers, or officer or employee of the Company, any Acquired Company or any trustee, beneficiary, or Affiliate of any Seller;
xii. any agreement with any Seller or any Affiliate of any Seller which is not an Acquired Company;
xiii. any agreement with suppliers (viiiincluding raw material, supply and procurement Contracts entered into in the Ordinary Course of Business), or any distribution or sale contract, which involves payments in excess of $1,000,000 per year and which is not terminable by the Company or an Acquired Company party thereto upon less than twelve (12) months’ notice;
xiv. any Contract to make requirements or “take or pay” contracts;
xv. any agreement for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $1,000,000;; or
(ix) xvi. any Contract providing for the grant agreement relating to any third-party of any right of first refusal cleanup, abatement, monitoring or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms actions in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract connection with any employee leasing or staffing company by Liability related to Environmental and Safety Requirements which such employee leasing or staffing company’s employees or contractors provide services to the Businessrequires aggregate future payments in excess of $1,000,000.
(b) Section 4.12(b) of the Seller Disclosure Letter sets b. Except as set forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party theretoon Schedule 4.15, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and as would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete : (i) all of the Scheduled Contracts are in full force and correct copy effect and constitute legal and binding obligations of each written Material Contract, in each casethe Company or an Acquired Company party thereto, as amendedthe case may be, supplemented or otherwise modified through and (and includingii) neither the date Company nor any Acquired Company party thereto nor, to the Knowledge of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s KnowledgeSellers, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach of or default under any Material Contract under, and, to the Knowledge of SellerSellers, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (which with or without notice or lapse of time time, or both), would become a breach of or default on the part of Seller or under, any of its Subsidiaries, or any other party to such Material Scheduled Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Except as set forth in Section 4.12(a3.13(a) of the Seller Company Disclosure Letter Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract: (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act) to be performed in full or in part after the date of this Agreement; (ii) which is a Company Joint Venture Agreement; (iii) which constitutes a contract or commitment relating to Company Indebtedness or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; or (iv) which contains a list (orany provision that would restrict or limit, as applicablein any material respect, contains a cross-reference to another Section the conduct of business of the Seller Disclosure Letter that lists)Company, organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each any Subsidiary of the following Transferred Contracts Company or any of their respective Affiliates (other than Real Property Leasesor any Affiliate of any such Affiliate thereof) after the Effective Time. Each contract, Benefit Plans arrangement, commitment or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts understanding of the type described in subclauses clause (i)-(xiiii) entered into after of this Section 3.13(a) has been filed in the date hereof and prior to Company SEC Documents. Each Contract listed in Section 3.13(a) of the Closing Date are collectively Company Disclosure Letter is referred to herein as a “Disclosed Contract” and correct and complete copies thereof have been provided to Parent by the “Material Contracts”):Company.
(b) (i) any Each Company Contract that is required by its terms or is currently expected to result in valid and binding on the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or Company and any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging is a party thereto, as applicable, and in any line of business or activity in any geographic region in which the Business operatesfull force and effect, other than any such restrictions Company Contract that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers expires or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person hereof in accordance with its terms andor amended by agreement with the counterparty thereto (provided that, if any such Company Contract is so amended in accordance with its terms after the date hereof (provided such amendment is not prohibited by the terms of this Agreement), then to Seller’s Knowledgethe extent the representation and warranty contained in this sentence is made or deemed made as of any date that is after the date of such amendment, each other party thereto, and is the reference to “Company Contract” in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles the first clause of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures this sentence shall be deemed to be a legalreference to such contract as so amended), valid (ii) the Company and binding obligationeach of its Subsidiaries has in all respects performed all obligations required to be performed by it to date under each Company Contract, enforceable, or in full force and effect that, individually or in the aggregate, have not had and except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect. Seller has made available to Purchaser a complete , and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and includingiii) neither the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller Company nor any of its Subsidiaries is in breach knows of, or default under has received notice of, the existence of any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without which constitutes, or, after notice or lapse of time or both), will constitute, a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller the Company or any of its Subsidiaries received any notice of under any such breachCompany Contract, default, event or condition, except, in each case, for any except where such breach, default, event or condition that individually or in the aggregate, has not had and default would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Quipp Inc)
Contracts. (a) Section 4.12(a2.2(o) of the Seller Disclosure Letter contains Schedule lists or describes each agreement, lease or license (collectively, “Contracts”) to which a list (or, TDI Company or a TDI Subsidiary is a party or by which it is bound as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such Contract, Agreement that is of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the a type described in subclauses below (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as collectively, the “Material Contracts”):
(i) Any employment, severance or consulting Contract with an employee or former employee that is not terminable at will, at no cost, by the TDI Company or the TDI Subsidiary party thereto (other than any Contract that is required for the employment of any such employee or former employee implied in Law), and which will require the payment of amounts by its terms the TDI Company or is the TDI Subsidiary, as applicable, after the date of this Agreement in excess of $100,000.00 in base pay per annum and all Contracts providing for benefits under any Company Plan;
(ii) Any collective bargaining Contract with any labor union;
(iii) Except for Contracts for which the payments to be made thereunder are currently expected to result accounted for in the payment Seller’s capital budget, any Contract for capital expenditures or receipt the acquisition or construction of fixed assets which requires aggregate future payments in excess of $500,000.00;
(iv) Any Contract containing covenants of any TDI Company or any TDI Subsidiary not to compete in any line of business with any Person in any geographic area;
(v) Any Contract (or group of Contracts relating to the same site) requiring aggregate future payments or expenditures in excess of $750,000.00 and relating to cleanup, abatement, remediation or similar actions in connection with environmental Liabilities;
(vi) Any license, royalty Contract or other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires future payments by a TDI Company or a TDI Subsidiary in excess of $1,000,000.00 per annum;
(vii) Any Contract pursuant to which any TDI Company or any TDI Subsidiary has entered into a partnership or joint venture with any other Person (other than another TDI Company or another TDI Subsidiary);
(viii) Any indenture, mortgage, loan or credit Contract under which a TDI Company or a TDI Subsidiary has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money, or guaranteed indebtedness for money borrowed by others, in an amount greater than $1,000,000.00;
(ix) Any Contract or commitment providing for an interest rate, currency or commodity swap, derivative, hedge, forward purchase or sale or other transaction similar in nature or effect or any off-balance sheet financing;
(x) Any Contract under which a TDI Company or a TDI Subsidiary is (A) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third person or entity, (B) a lessor of real property, or (C) a lessor of any tangible personal property owned by the Business of more than $1,000,000 in the current fiscal year applicable TDI Company or a TDI Subsidiary, in any one-year period over its remaining termcase referred to in (A) or (C) only which requires annual payments in excess of $1,500,000.00;
(xi) Any material Contract between any TDI Company or any TDI Subsidiary, on the one hand, and the Parent or any of the Parent’s Subsidiaries (other than the TDI Companies and the TDI Subsidiaries) on the other hand;
(xii) Any Contract (other than Contracts of the type described in subclauses (i) through (xi) above) that involves aggregate future payments by or to a TDI Company or a TDI Subsidiary in excess of $1,000,000.00 per annum, other than a purchase orders or sales order or other Contract entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;; and
(xiii) any Contract which involves All other Contracts, whether or not made in the sale, transfer or acquisition ordinary course of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusivelybusiness, the Business and pursuant to absence of which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller The applicable TDI Company or the applicable TDI Subsidiary party thereto, has made available performed in all material respects the obligations required to Purchaser be performed by it when due (x) under each of the Material Contracts and (y) as of the Closing Date, under each Contract entered into by a complete and correct copy of each written Material Contract, in each case, as amended, supplemented TDI Company or otherwise modified through (and including) TDI Subsidiary subsequent to the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, Agreement that has not expired or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term terminated in accordance with its terms.
terms and which would qualify as a Material Contract if in effect as of the date of this Agreement (ecollectively, the “Post-signing Material Contracts”). The applicable TDI Company or the applicable TDI Subsidiary party thereto is not (with or without the lapse of time or the giving of notice or both) Neither Seller nor any of its Subsidiaries is in breach or default under thereunder and to the knowledge of the Parent and the Seller, the counterparty or counterparties are not in material breach of any Material Contract andor, to as of the Knowledge of SellerClosing Date, no other party to any Post-signing Material Contract, except in any such Material Contract is in case for any breach or default thereunderwhich would not reasonably be expected to have, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had a Material Adverse Effect; provided, however, that no representation or warranty is made with respect to any Material Contract or any Post-signing Material Contract that constitutes an Assigned Contract as defined in the Asset Purchase Agreement. Except as set forth in Section 2.2(o)(xiv) of the Disclosure Schedule, each Material Contract is valid and binding on the parties thereto and is in full force and effect, except for the failure of which would not reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a3.9(a) of the Seller Company Disclosure Letter contains Schedule identifies each Contract to which any Acquired Corporation is a list (orparty, or by which it is bound, that constitutes a Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts to which any Acquired Corporation is a party or by which it is bound as of the date of this Agreement (other than Real Property Leases, Benefit Plans whether or Employment Agreements) (the contracts listed not set forth on Section 4.12(a3.9(a) of the Seller Company Disclosure Letter together with contracts of the type described in subclauses (i)-(xiiiSchedule) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the constitutes a “Material ContractsContract”)::
(i) any Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) an Acquired Corporation will be required by its terms after the date of this Agreement to pay any monetary obligations or is currently expected to result in the payment (B) that contains material obligations or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicelimitations on such Acquired Corporation’s conduct;
(ii) any Contract entered into with (xA) an Affiliate, officer materially limiting the freedom or director right of Seller any Acquired Corporation or any of its Subsidiaries Affiliates to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Transferred Entity or (y) any entity controlled by an officer or director of Seller Acquired Corporation or any of its Subsidiaries Affiliates to sell, distribute or of manufacture any Transferred Entityproducts or services for any other Person;
(iii) any Contract (A) under which aggregate payments in excess of $500,000 were made by or to the Acquired Corporations in the fiscal year ending December 31, 2021 or (B) that restricts requires by its terms or is reasonably expected to require the Business payment or delivery of cash or other consideration to or by any Acquired Corporation in an amount having an expected value in excess of $500,000 in the fiscal year ending December 31, 2022 and in each case which cannot be cancelled by such Acquired Corporation without penalty or further payment without more than ninety (90) days’ notice;
(iv) any Contract relating to (A) the pricing or reimbursement terms for the Key Product, (B) the distribution of the Key Product (for the avoidance of doubt, excluding any Contract solely in respect of courier services), or (C) the purchase from competing any Acquired Corporation of the Key Product;
(v) any Contract relating to Indebtedness in excess of $150,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Corporation;
(vi) any Contract with any Person constituting a material joint venture, collaboration, partnership or engaging similar profit sharing arrangement;
(vii) any Contract with a material group purchasing organization;
(viii) any Contract (excluding any Employee Plan) that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(ix) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any line guaranty by an Acquired Corporation;
(x) any (A) In-bound License and (B) Out-bound License;
(xi) any Contract for the lease or sublease of business any real property;
(xii) any other Contract that is currently in effect and has been filed (or activity is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xiii) any Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any geographic region in which the Business operates, Affiliate (other than the Company) or immediate family member of any of the foregoing;
(xiv) any Contract pursuant to which any Acquired Corporation has continuing obligations or interests involving (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case in excess of $1,000,000 of future payments in the aggregate or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Corporation, in each case in excess of $1,000,000 of future payments in the aggregate;
(xv) any Contract that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of the Key Product, which, if terminated or not renewed, would reasonably be expected to have a material and adverse effect on the Key Product;
(xvi) any Contract that is with any Person who is a supplier to the Company of (A) material tangible products or services relating to the Key Product, or (B) such restrictions products or services relating to the Key Product that cannot be obtained from another source for a substantially similar cost with substantially similar quality;
(xvii) any Contract that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of the Company’s product candidates, which, if terminated or not renewed, would reasonably be expected to have a material and adverse effect on the Company’s product candidates;
(xviii) any Contract with any Governmental Body under which payments in excess of $500,000 were received by the Acquired Corporations in the most recently completed fiscal year or under which payments in excess of such amount are reasonably expected to be made in the current or any future fiscal year;
(xix) any Contract for the acquisition or divestiture of assets that contains financial covenants, indemnities or other payment obligations that would reasonably be expected to result in the receipt or making of future payments by the Company or any Company Subsidiary in excess of $1,000,000; and
(xx) any Contract not otherwise required to be disclosed under the foregoing clauses (i) through (xix) that would reasonably be expected to, as of the date hereof, involve payments by or to the Company of more than $1,000,000 between the date hereof and December 31, 2024 and which cannot be cancelled by the Company without penalty or further payment without more than ninety (90) days’ notice.
(b) As of the date of this Agreement, the Company has either delivered or made available to Parent an accurate, unredacted and complete copy of each Material Contract or has publicly made available an accurate, unredacted and complete copy of such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (XXXXX) database of the SEC. Except as has not had, and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect thathave, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available , no (i) Acquired Corporation nor, to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As knowledge of the date hereofCompany, none of Sellerthe other party to a Material Contract is in material breach of, or material default under, any Subsidiary of SellerMaterial Contract and no Acquired Corporation, or to Seller’s Knowledgethe knowledge of the Company, any the other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract has exercised any termination rights or indicated and (ii) each Material Contract is, with respect to Seller either orally or the Acquired Corporations and, to the knowledge of the Company, the other party, a valid and binding agreement in writing such party’s intent to terminate such Material Contractfull force and effect, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
(e) Neither Seller nor , except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. Since January 1, 2019, the Acquired Corporations have not received any of its Subsidiaries is in written notice regarding any material violation or breach or default under any Material Contract and, to the Knowledge of Seller, no other party to that has not since been cured. No Acquired Corporation has waived in writing any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or rights under any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any the waiver of its Subsidiaries received any notice of any such breachwhich would have, default, event or condition, except, in each case, for any such breach, default, event or condition that either individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a3.7(a) of the Seller Company Disclosure Letter contains a list (ortrue, correct and complete list, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement, of each all Contracts, of the following Transferred Contracts (other than Real Property Leasestypes to which the Company or any of its Subsidiaries is a party or bound or to which any of their respective properties or assets is subject, Benefit Plans or Employment Agreements) (except for the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):Company Plans:
(i) any Contract that is required by its terms 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 of 1933, as amended (the “Securities Act”);
(ii) any employment, management, severance, retention, transaction bonus, change in control, consulting, relocation, repatriation or is currently expatriation Contract pursuant to which the Company or any Subsidiary has continuing obligations as of the date of this Agreement with any executive officer or other employee at the vice president level or above or any member of the Company Board;
(iii) any Contract involving or that would reasonably be expected to result involve aggregate payments or receivables by or to the Company or any of its Subsidiaries in the excess of $2,000,000 in any twelve (12) month period, other than Contracts terminable on less than ninety (90) days’ notice without payment or receipt by the Business Company or any of more than $1,000,000 its Subsidiaries of any material penalty;
(iv) the Contracts with Principal Suppliers set forth in Section 3.7(a)(iv) of the current fiscal year Company Disclosure Letter;
(v) any IP Contract;
(vi) any Contract, excluding Real Property Leases and the Franchise Agreements, containing any covenant or other provision (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person in any line of business; (B) prohibiting the Company or any of its Subsidiaries from engaging in any business with any Person or in any one-year period over territory or levying a fine, charge or other payment for doing so; (C) containing and limiting any right of the Company or any of its remaining termSubsidiaries pursuant to any “most favored nation” or “exclusivity” provisions or similar provisions; (D) granting any right of first refusal or right of first offer or similar right; or (E) limiting or purporting to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(vii) any mortgage, indenture, guarantee, loan or credit agreement, security agreement or other Contract relating to the borrowing of money or extension of credit or other Indebtedness, in each case in which the outstanding obligation, individually, is in excess of $2,000,000 other than purchase orders entered into (A) accounts receivables and payables in the ordinary course of business consistent with past practice;
; and (iiB) any Contract entered into with (x) an Affiliate, officer or director of Seller loans to the Company or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled Subsidiaries, on the one hand, by an officer or director of Seller the Company or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operatesSubsidiaries, on other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)hand;
(viii) any Contract to make capital expenditures providing for the payment, increase or vesting of any material benefits or compensation in excess of $1,000,000connection with the Merger (other than Contracts evidencing Company Equity Awards);
(ix) any Contract providing for the grant cash severance payments in excess of $1,000,000 (other than those pursuant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesseswhich severance is required by applicable Law);
(x) any Contract entered into with providing for indemnification of any officer, director or employee by the customers Company or suppliers any of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personits Subsidiaries;
(xi) any Contract providing for on-going indemnification that is a settlement, conciliation, or similar agreement (A) with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material obligations as of after the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Agreement;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter Contract that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsis a collective bargaining agreement;
(xiii) any Contract which involves that relates to the sale, transfer acquisition or acquisition disposition of any business to equity interest in any Person or by a material portion of the assets of any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller Person or any of its Subsidiariesbusiness, in each case that has not yet been consummated or that has continuing material obligations; and
(xiv) any Contract with any employee leasing joint venture, profit sharing, partnership or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Businessother similar agreements.
(b) Section 4.12(b) All Contracts of the Seller Disclosure Letter sets forth a complete and correct listtype described in clauses (a)(i) through (xiv) above, together with the Real Property Leases, are referred to herein as the “Material Contracts.” Except, in each case, as of has not had and would not be reasonably expected to have, individually or in the date hereofaggregate, of each Contract pursuant to which Seller or any of its Subsidiaries a Material Adverse Effect: (other than a Transferred Entityi) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation on the Company or a Subsidiary of Seller or one of its Subsidiariesthe Company, enforceable against such Person in accordance with its terms as applicable, and, to Seller’s Knowledgethe knowledge of the Company, each other party thereto, thereto and is in full force and effect subject in and (ii) the Company or a Subsidiary of the Company, as applicable, and to the knowledge of the Company each other party to each Material Contract, has performed and complied with all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures obligations required to be a legal, valid performed or complied with by it under each Material Contract and binding obligation, enforceable, has not waived or failed to enforce any rights or benefits thereunder. Except in full force any case of default as has not had and effect thatwould not be reasonably expected to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and includingx) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries there is in breach or no default under any Material Contract andby the Company or any of its Subsidiaries or, to the Knowledge knowledge of Sellerthe Company, no by any other party to any such Material Contract is in breach or default thereunderparty, and to Seller’s Knowledge (y) no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or the lapse of time or both), the giving of notice or both would constitute a breach or default on thereunder by the part of Seller Company or any of its Subsidiaries, or or, to the knowledge of the Company, by any other party party. A true, correct and complete copy of each Material Contract has been made available to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectParent.
Appears in 1 contract
Contracts. (a) Section 4.12(a) Contracts. Schedule 3.14 sets forth a complete and accurate list of all Contractual Obligations of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section Acquired Companies of the Seller Disclosure Letter types described below that lists), organized according to each subsection are in effect on the date of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) Agreement (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Disclosed Contracts”):
(i) each Contractual Obligation (or group of related Contractual Obligations) that resulted in net revenues to the Acquired Companies in excess of $10,000,000 for the twelve-month period ended on the Most Recent Balance Sheet Date (such obligation, a “Material Customer Contract”);
(ii) each Contractual Obligation (or group of related Contractual Obligations) for the purchase of products or services from a supplier to the Acquired Companies with costs in excess of $10,000,000 for the twelve-month period ended on the Most Recent Balance Sheet Date (such obligation, a “Material Supplier Contract”);
(iii) each Contractual Obligation that prohibits any Contract of the Acquired Companies from competing with any Person or otherwise freely engaging in business anywhere around the world;
(iv) each material partnership or joint venture agreement to which any Acquired Company is party;
(v) each Contractual Obligation under which any Acquired Company has permitted any material Asset to become encumbered by a Lien (other than by a Permitted Lien);
(vi) each Contractual Obligation of the Acquired Companies providing for the employment of any employee whose annual base compensation in 2017 exceeded $150,000 per year;
(vii) each Contractual Obligation of the Acquired Companies providing for the engagement of any individual independent contractor whose annual base compensation in 2017 exceeded $200,000 per year;
(viii) each collective bargaining agreement or other Contractual Obligation with any labor union or other employee representative body;
(ix) each Contractual Obligation, including options, to sell or lease (as lessor) any Real Property of any Acquired Company for an amount in excess of $1,000,000 for the twelve-month period ended on the Most Recent Balance Sheet Date;
(x) each Contractual Obligation pursuant to which any Acquired Company has agreed to acquire or purchase all or a material portion of a business (whether by merger, asset purchase, purchase of Equity Securities or any other similar transaction) since January 1, 2015;
(xi) each Contractual Obligation that is required by its terms provides for an “earn-out” or is currently expected similar deferred consideration in respect of an acquisition that are outstanding as of the date of this Agreement and each Contractual Obligation relating to result in the payment acquisition or receipt disposition by the Business Acquired Companies of more than any line of business under which the Acquired Companies have any material outstanding executory covenants or other material outstanding obligations;
(xii) each Contractual Obligation that obligates the Acquired Companies to make any capital commitment or expenditure in excess of $1,000,000 in the current fiscal year or in any one-year period over its remaining term, 2,500,000;
(xiii) each Contractual Obligation (other than purchase orders entered into in the ordinary course Ordinary Course of business consistent with past practiceBusiness) pursuant to which any Acquired Company has agreed to acquire any Real Property for an amount in excess of $1,000,000 for the twelve-month period ended on the Most Recent Balance Sheet Date;
(iixiv) any each Material Customer Contract entered into with and Material Supplier Contract that contains a change of control (xor equivalent) an Affiliate, officer or director of Seller provision for which Buyer or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and Acquired Company would not reasonably be expected to be lose or otherwise forfeit any material to benefit of such Contractual Obligation, or would have increased material obligations or material liabilities under such Contractual Obligation, upon the Business, taken as a whole;consummation of the Contemplated Transactions; and
(ivxv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to each material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party Contractual Obligation that (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of grants any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
any Acquired Company any (viiii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing rights, or terms in favor (ii) exclusive rights or rights of such Person;first refusal or rights that limit the ability of any Acquired Company to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses or (B) includes a “take-or-pay” clause.
(xib) any Contract providing for on-going indemnification obligations The Company has made available to Buyer accurate and complete copies of each Disclosed Contract, in each case, as amended or otherwise modified and in effect. As of the date of this Agreement by the Business other than Agreement: (i) each Disclosed Contract is in respect of the performance of its obligations under Contracts or other arrangements to which it full force and effect and is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation agreement of Seller or one of its Subsidiarieseach Acquired Company party thereto, enforceable against such Acquired Company and, to the Company’s Knowledge, any other Person party to such Contractual Obligation in accordance with its terms and, subject to Seller’s Knowledgeobtaining any necessary consents disclosed in Schedule 3.14, each other party thereto, and is will continue to be in full force and effect subject and so enforceable following the consummation of the Contemplated Transactions without any penalty, acceleration, termination, repurchase right or other adverse consequence, in all cases to each case resulting from the consummation of the Contemplated Transactions, except as the enforceability thereof may be limited by: (A) applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or other Laws affecting creditors’ similar laws in effect which affect the enforcement of creditors rights generally and subject to generally; or (B) general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, law or in full force equity; and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and includingii) the date of this Agreement.
(d) As of Acquired Companies are not, and, to the date hereof, none of Seller, any Subsidiary of Seller, or to SellerCompany’s Knowledge, no other party to any Disclosed Contract is, in material breach or violation of, or default under, or has repudiated any material provision of, any Disclosed Contract. To the Company’s Knowledge (x) there are no material disputes pending under any such Disclosed Contract, and (y) no Acquired Company has received any notice from any other party to any Material such Disclosed Contract has exercised any termination rights or indicated to Seller either orally or in writing of such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Disclosed Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Greif Inc)
Contracts. (a) Section 4.12(a3.10(a) of the Seller Seller/Company Disclosure Letter (with paragraph references corresponding to those set forth below) contains a true and complete list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts Contracts, to which the Company is a party or by which any of its properties or assets is bound (other than Real Property Leaseseach such Contract, Benefit Plans whether or Employment Agreements) (the contracts listed on Section 4.12(a) not set forth in such section of the Seller Seller/Company Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the Letter, a “Material ContractsContract”):
(i) all employment agreements;
(ii) all consulting and work-for-hire agreements;
(iii) all collective bargaining agreements or other Contracts with any Contract that is required by its terms labor organization, union or is currently expected association;
(iv) all Contracts containing (A) any provision or covenant purporting to result prohibit or limit the ability of the Company to engage in any business activity or compete with any Person or purporting to prohibit or limit the ability of any Person to compete with the Company, in either case in any geographic area or for any current or potential customers anywhere in the payment world and (B) all Contracts containing any standstill or receipt similar obligation of the Company to a third party or of a third party to the Company;
(v) all Contracts (A) containing any “most favored nations” or similar right in favor of any party other than the Company or (B) containing any right of any party thereto other than the Company to terminate such contract or containing any other consequence upon a “change of control” of the Company;
(vi) all customer Contracts with active customers of the Company to whom the Company has the obligation to deliver products or services where the aggregate amount to be paid to the Company by such customer over the entire term of all such Contracts with such customer exceeds $5,000 (it being understood and agreed by the Business parties that Section 3.10(a)(vi) of the Seller/Company Disclosure Letter shall set forth the names of each such customer and the aggregate value of the customer Contracts with such customer only, but such Contracts shall nonetheless constitute “Material Contracts” for purposes of this Agreement);
(vii) all Contracts (other than this Agreement) with (A) the Sellers or any Affiliate of any Sellers or (B) any officer or employee of the Company, any Seller, or any Affiliate of any Seller (other than employment agreements covered by clause (i) above);
(viii) all leases, subleases or similar Contracts with any Person under which the Company is a lessor or sublessor of, or makes available for use to any Person, (A) any Leased Property or (B) any portion of any premises otherwise occupied by the Company;
(ix) all leases, subleases or similar Contracts with any Person under which (A) the Company is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) the Company is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by the Company, in any such case which has an aggregate future liability or receivable, as the case may be, in excess of $5,000;
(x) other than any licenses of third-party commercial off-the-shelf Software, all material licenses, sublicenses, options or other agreements relating in whole or in part to the Company Intellectual Property (including any material licenses or other agreements under which the Company is licensee or licensor of any Company Intellectual Property);
(xi) all Contracts (A) with respect to any Indebtedness of the Company, (B) granting a Lien upon any Leased Property or any other asset of the Company or (C) under which any Person has directly or indirectly guaranteed Liabilities of the Company;
(xii) all Contracts under which the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person;
(xiii) all Contracts (A) for the sale of any substantial portion of the assets of the Company or the grant of any preferential rights to purchase any such assets or requiring the Consent of any party to the transfer thereof or (B) providing for any obligations of any Person for the payment of any deferred or conditional purchase price or purchase price adjustment with respect to the disposition of, or for the indemnification of any Person with respect to any Liabilities relating to, any current or former business of the Company;
(xiv) all Contracts (A) with, or license or Permit by or from, any Governmental Entity or (B) for any joint venture, partnership or similar arrangement;
(xv) all Contracts (including purchase orders, vendor agreements, advertising agreements, dealer, distributor, sales representative, franchisee or similar agreements) of a type not otherwise covered by another clause of this Section 3.10(a) (without regard to materiality and value thresholds contained therein), involving payment by the Company of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term5,000, other than purchase orders entered into in the ordinary course Ordinary Course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of after the date of this Agreement by the Business other than and not in respect violation of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiariesthis Agreement; and
(xivxvi) Contract providing for indemnification of any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to officer of the Business.Company (other than the Constitutive Documents of the Company);
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Each Material Contract is in full force and effect and constitutes a legal, valid and binding obligation agreement of Seller or one of its Subsidiarieseach party thereto, enforceable against such Person by the Company in accordance with its terms andterms, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other Laws laws affecting creditors’ rights generally and subject to general principles of equity, regardless of equity (whether considered in a proceeding at law or in equity equity). The Company has performed all obligations required to be performed by it to date under the Material Contracts, and it is not (with or at Lawwithout the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the Knowledge of the Sellers, no other party to any Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder. None of the Sellers or the Company has, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or as disclosed in the aggregateapplicable subsection of Section 3.10 of the Seller/Company Disclosure Letter, have not had received any written notice of the intention of any party to terminate any Material Contract. True and would not complete copies of each unwritten Material Contract and reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy accurate written descriptions of each written Material Contract, in each casetogether with all amendments and supplements thereto and all waivers of any terms thereof, as amended, supplemented or otherwise modified through (and including) have been made available to the date of this Agreement.
(d) As of Purchaser prior to the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(aSchedule 4.18(a) of to the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of Schedule lists all the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each Contracts and arrangements of the following Transferred Contracts (other than Real types to which Seller or any Seller Subsidiary is a party or by which any of them is bound, or to which any of their respective assets or properties is subject, in each case to the extent not fully performed or containing any residual license, confidentiality obligation or right or obligation regarding Intellectual Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Specified Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent kind with past practice;
(ii) any Contract entered into with (x) an Affiliateemployee, officer or director of Seller or any Seller Subsidiary, or with any stockholder or other Affiliate of its Subsidiaries or of Seller (other than a Seller Subsidiary), other than any Transferred Entity or Contracts with Senior Management;
(yii) any entity controlled by an officer or director of active Contract pursuant to which the Seller or any of its Subsidiaries Seller Subsidiary is providing or of will be providing goods and/or services to any Transferred EntityCustomer;
(iii) except for employment Contracts, any Contract that restricts the Business from competing or Contracts with any sales representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distributing or engaging promotional activities, and any Contract or Contracts to act as one of the foregoing on behalf of any Person, which (A) involves in excess of $5,000 per year individually, or $25,000 per year in the aggregate, (B) has a term that will extend for more than 12 months after the Closing Date or (C) is not cancellable without cost upon 30 days’ or less notice by Seller or any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholeSeller Subsidiary;
(iv) except for Contracts of Seller Subsidiaries, any other Contract entered into with of any nature which involves the customers payment or suppliers receipt of the Business listed on Section 4.17 and 4.18 cash or other property, an unperformed commitment or goods or services having a value in excess of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person$5,000;
(v) all any Contract or Contracts pursuant to which Seller, its Subsidiaries Seller or any Transferred Entity receives Seller Subsidiary has made or grants will make loans or advances, or has or will have incurred Indebtedness or become a license to material Intellectual Property from guarantor or surety or pledged its credit on or otherwise become responsible with respect to any other Person undertaking of another (other than licenses and subscriptions except for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with the negotiation or incorporated collection of negotiable instruments in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) transactions in the aggregate or annual payments Ordinary Course of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”Business);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profitspartnership, revenue joint venture or expensesother cooperative undertaking;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business relating to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)a Computer System;
(viii) any power of attorney or agency Contract or arrangement with any Person pursuant to make capital expenditures in excess which such Person is granted the authority to act for or on behalf of $1,000,000Seller or any Seller Subsidiary, or Seller or any Seller Subsidiary is granted the authority to act for or on behalf of any Person;
(ix) any Contract providing Lease or Leases relating to personal property that (A) involves payments in excess of $5,000 per year individually, or $25,000 per year in the aggregate, (B) has a term that will extend for more than 12 months after the grant to any third-party of any right of first refusal Closing Date or other similar rights to purchase any of the Business(C) is not terminable without cost on 30 days’ assets, properties or businessesless notice by Seller or a Seller Subsidiary;
(x) any Contract entered into with (except employment agreements) which relates to the customers management, operation or suppliers governance of, or issuance of capital stock by, Seller or any Seller Subsidiary (A) to which Seller or any Seller Subsidiary is a party or (B) of which Seller has Knowledge (it being understood that for purposes of this clause (B) the Business listed on Section 4.17 and 4.18 term “Knowledge” does not contemplate any inquiry by Seller or its management of the holders of Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such PersonStock as such);
(xi) any other Contract providing for on-going indemnification obligations as of which the full performance thereof may extend beyond three months from the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Agreement;
(xii) any Contracts Contract entered into with the customers after March 31, 2004, relating to any acquisition or suppliers disposition of all or any material portion of the Business listed on Section 4.17 and 4.18 assets or capital stock of the Seller, any Seller Disclosure Letter that require the Business to purchase its total requirements Subsidiary or any predecessor in interest of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementseither;
(xiii) any other Contract not made in the Ordinary Course of Business which involves the sale, transfer or acquisition of any business is to or be performed by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any the Seller Subsidiary in whole or in part at or after the date of its Subsidiariesthis Agreement (except employment agreements with Senior Management); and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services other Contracts that are material to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)Subsidiary.
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. Except as shown on the Xxxxxxxxx Disclosure Schedule, neither the Xxxxxxxxx Companies nor any of the Xxxxxxxxx Subsidiaries is a party to or subject to: (a) Section 4.12(a) of the Seller Disclosure Letter contains a list any employment contract with any officer, consultant, director or employee; (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(ib) any Contract that is required by its terms plan or is currently expected to result contract or arrangement providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing, or the like; (c) any contract or agreement with any labor union; (d) any lease of real or personal property with a remaining term in the payment or receipt by the Business excess of more than $1,000,000 in the current fiscal one year or calling for yearly lease payments in excess of $50,000; (e) any one-year period over its remaining termagreement for the purchase, sale or other disposition of any materials, equipment, supplies or inventory in an amount in excess of $50,000 for a particular contract, except individual purchase or sales orders from suppliers having a term of less than purchase orders entered into three months incurred in the ordinary course of business consistent with past practice;
business; (iif) any Contract entered into with instrument creating a lien or evidencing or related to indebtedness for borrowed money; (xg) an Affiliateany agreement relating to the provision of property management, officer tenant representation, agency, leasing or director of Seller other services by the Xxxxxxxxx Companies or any of its the Xxxxxxxxx Subsidiaries or of any Transferred Entity or (yh) any entity controlled by an officer other material contract or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are agreement not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment type covered by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers other specific items of this section. Each of the Business listed contracts, instruments, and other documents described on Section 4.17 the Xxxxxxxxx Disclosure Schedule is valid and 4.18 in full force and effect, and a true and complete copy thereof heretofore have been made available to the La Salle Partnerships. To the knowledge of Xxxxxxxxx Management, the Xxxxxxxxx Companies and each of the Seller Disclosure Letter and containing Xxxxxxxxx Subsidiaries is not in default, or alleged to be in default, in any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) material respect under any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its contracts, instruments, obligations under Contracts or other arrangements documents to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third which it is bound. To the knowledge of Xxxxxxxxx Management, no party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller with whom the Xxxxxxxxx Companies or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Xxxxxxxxx Subsidiaries (other than a Transferred Entity) has an agreement is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains in default thereunder in any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)respect.
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Lasalle Partners Inc)
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection For purposes of this Section 4.12(a) which applies to such ContractAgreement, of each of the following Transferred shall be deemed to constitute a "Company Material Contract" which Company Material Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts are listed on Section 4.12(a) Schedule 2.7 and copies of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior which have been made available to the Closing Date are collectively referred to herein as the “Material Contracts”):Parent:
(i) any Acquired Corporation Contract that is required by its terms or is currently expected the rules and regulations of the SEC to result in be filed as an exhibit to the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceCompany SEC Documents;
(ii) any Acquired Corporation Contract entered into with (x) an Affiliaterelating to the employment of any employee, officer and any Contract pursuant to which any of the Acquired Corporations is or director of Seller may become obligated to make any severance, termination, bonus or relocation payment or any other payment (other than payments in respect of its Subsidiaries salary) in excess of $20,000, to any current or of any Transferred Entity former employee or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitydirector;
(iii) any Acquired Corporation Contract that restricts relating to the Business from competing with acquisition, transfer, development, sharing or license of any material Proprietary Asset (except for any Acquired Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Corporations under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Corporations to any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as on a wholenon-exclusive basis);
(iv) any Acquired Corporation Contract entered into with the customers which provides for indemnification of any current or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personformer officer, director or employee;
(v) all Contracts pursuant any Acquired Corporation Contract creating or relating to which Seller, its Subsidiaries any partnership or joint venture or any Transferred Entity receives sharing of revenues, profits, losses, costs or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)liabilities;
(vi) any joint venture, limited liability company Acquired Corporation Contract that involves the payment or partnership Contract with any third-party involving expenditure of in excess of $50,000 that may not be terminated by the applicable Acquired Corporation (without penalty) within sixty (60) days after the delivery of a sharing of profits, revenue or expensestermination notice by the applicable Acquired Corporation;
(vii) any Acquired Corporation Contract evidencing contemplating or involving (A) the payment or delivery of cash or other consideration in an outstanding loan, advance amount or investment by having a value in excess of $100,000 in the Business to or in any Personaggregate, or guarantee by (B) the Business performance of services having a value in excess of $100,000 in the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)aggregate;
(viii) any Government Contract (A) creating or relating to make capital expenditures the creation of any Encumbrance with respect to any asset owned or used by any Acquired Corporation having a value in excess of $1,000,000;50,000; (B) involving or incorporating any liability, obligation, guaranty, pledge, performance or completion bond, indemnity (other than customary intellectual property indemnities for hardware and software sold by any Acquired Corporation), right of contribution or surety arrangement, any of which obligations involve or may reasonably be expected to involve an Acquired Corporation obligation in excess of $50,000 per year; or (C) contemplating or involving (1) the payment or delivery of cash or other consideration in an amount or having a value in excess of $50,000 in the aggregate, or (2) the performance of services having a value in excess of $50,000 in the aggregate; and
(ix) any Acquired Corporation Contract providing for imposing any restriction on the grant to any third-party right or ability of any right of first refusal Acquired Corporation to (A) compete with any other Person, (B) acquire any material product or other similar rights material asset or any services from any other Person, sell any material product or other material asset to purchase or perform any of the Business’ assetsservices for any other Person or transact business or deal in any other manner with any other Person, properties or businesses;(C) develop or distribute any material technology.
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor other Acquired Corporation Contract, if a breach of such Person;
(xi) Acquired Corporation Contract would have a Material Adverse Effect on the Acquired Corporations by itself, and specifically excluding any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Acquired Corporation Contract which involves would have been disclosed under (ii) or (vi)-(viii) above, but for the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which thresholds set forth in such employee leasing or staffing company’s employees or contractors provide services to the Businesssubsections.
(bi) Section 4.12(bAs against the Company, each Company Material Contract is valid and in full force and effect, and is enforceable in accordance with its terms subject to (A) Legal Requirements of general application relating to bankruptcy, insolvency and the Seller Disclosure Letter sets forth a complete relief of debtors, and correct list(B) rules of law governing specific performance, injunctive relief and other equitable remedies; and (ii) to the knowledge of Company, as against the other parties thereto, each Company Material Contract is valid and in full force and effect, and enforceable in accordance with its terms subject to (A) Legal Requirements of general application relating to bankruptcy, insolvency and the date hereofrelief of debtors, and (B) rules of each Contract pursuant to which Seller or any of its Subsidiaries (law governing specific performance, injunctive relief and other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)equitable remedies.
(c) Except for terminations in accordance with None of the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller Acquired Corporations has materially violated or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceablebreached, or in full force and effect thatcommitted any material default under, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written any Company Material Contract. To the Company's knowledge, in each caseno other Person has violated or breached, as amendedor committed any default under, supplemented or otherwise modified through (and including) the date of this Agreementany Company Material Contract.
(d) As of To the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of SellerCompany's knowledge, no other party to any such Material Contract is in breach or default thereunderevent has occurred, and to Seller’s Knowledge no event circumstance or condition has occurred and is continuing exists, that constitutes or would constitute (with or without notice or lapse of time time) could reasonably be expected to (i) result in a material violation or both)material breach of any provision of any Company Material Contract by any of the Acquired Corporations; (ii) give any Person the right to declare a default or exercise any material remedy under any Company Material Contract; (iii) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Company Material Contract; or (v) give any Person the right to cancel or terminate, or modify in any material respect, any Company Material Contract.
(e) To the knowledge of the Acquired Corporations, with respect to Government Contracts, there is, as of the date hereof, no (i) civil fraud or criminal investigation by any Governmental Body, (ii) Acquired Corporation, or current officers, employees or affiliates thereof, currently suspended or debarred, or suspension of debarment proceeding (or equivalent proceeding) against any of the Acquired Corporations, their current officers, employees or affiliates, (iii) request by any Governmental Body for a breach contract price adjustment based on a claimed disallowance by any Governmental Body or default at the direction of any Governmental Body or written notice of defective pricing other than as reserved for on the part of Seller Company Financial Statements in accordance with GAAP, (iv) claim or equitable adjustment by the Acquired Corporations against the U.S. Government or any third party in excess of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or $50,000 in the aggregate, has not had and would not reasonably be expected to have (v) written notice challenging, questioning or disallowing any cost(s) in excess of $50,000 in the aggregate, (vi) notice of contract termination, cure notice or show cause notice, or (vii) violation of any statutory, regulatory or contractual provision that could result in any fine or penalty of a Material Adverse Effectcriminal, civil or administrative nature.
Appears in 1 contract
Samples: Merger Agreement (Cylink Corp /Ca/)
Contracts. (a) Section 4.12(aSECTION 2.16(a) of the Seller Disclosure Letter OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to those set forth below) contains a true and complete list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts or other arrangements (other than Real Property Leasestrue and complete copies or, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) if none, reasonably complete and accurate written descriptions of the Seller Disclosure Letter which, together with contracts all amendments and supplements thereto and all waivers of the type described in subclauses (i)-(xiii) entered into after the date hereof and any terms thereof, have been delivered to Purchaser prior to the Closing Date are collectively execution of this Agreement) to which Seller is a party or by which any of the Transferred Assets is bound:
(A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to employment or the termination of employment of, any Employee, the name, position and rate of compensation of each Employee party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and any such Contracts referred to herein as the “Material Contracts”):
in clause (iA)) any Contract that is required by its terms or is currently expected involving an obligation of Seller to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or make payments in any one-year period over its remaining termyear, other than purchase orders entered into with respect to salary or incentive compensation payments in the ordinary course of business, to any Employee exceeding $25,000 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 Seller to engage in any business activity or compete with any Person in connection with the Business or , except as provided in SECTION 4.10, prohibiting or limiting the ability of any Person to compete with Seller 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 Seller deals in connection with the Business;
(v) all Contracts relating to the future disposition or acquisition of any Transferred Assets, other than dispositions or acquisitions of Inventory in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(vvi) all collective bargaining or similar labor Contracts pursuant to which Seller, its Subsidiaries or covering any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;Employee; and
(vii) any Contract evidencing an outstanding loanall other Contracts (other than Benefit Plans, advance or investment by the Real Property Leases and insurance policies listed in SECTION 2.18 OF THE DISCLOSURE SCHEDULE) with respect to the Business that (A) involve the payment or potential payment, pursuant to or in any Person, or guarantee by the Business of the obligations terms of any Person in respect of any Liability of such PersonContract, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability Seller of the Business for indemnification obligations thereunder does more than $100,000 annually and (B) cannot exceed, be terminated within thirty (30) days after giving notice of termination without resulting in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller cost or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services penalty to the BusinessSeller.
(b) Section 4.12(bEach Contract required to be disclosed in SECTION 2.16(a) of the Seller Disclosure Letter sets forth a complete OF THE DISCLOSURE SCHEDULE is in full force and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business effect and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is constitutes a legal, valid and binding obligation of Seller or one of its Subsidiariesagreement, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e, of each party thereto; and except as disclosed in SECTION 2.16(b) Neither OF THE DISCLOSURE SCHEDULE neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract andnor, to the Knowledge of Seller, no any other party to such Contract is, or has received notice that it is, in violation or breach of or default under any such Material Contract is in breach (or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a would be in violation or breach of or default on under any such Contract) in any material respect.
(c) Except as disclosed in SECTION 2.16(c) OF THE DISCLOSURE SCHEDULE, the part execution, delivery and performance by Seller of this Agreement and the Operative Agreements to which it is a party, and the consummation of the transactions contemplated hereby and thereby, will not (A) result in or give to any Person any right of termination, cancellation, acceleration or modification in or with respect to, (B) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under, or (C) result in the creation or imposition of any Lien upon Seller or any of its SubsidiariesAssets and Properties under, or any other party to such Material Business Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference Company filed pursuant to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts Exchange Act of the type described in subclauses (i)-(xiiiItem 601(b)(10) entered into after of Regulation S-K promulgated by the date hereof SEC have been filed, and no such Contract has been amended or modified, except for such amendments or modifications which have been filed as an exhibit to a subsequently dated and filed Company SEC Document before 5:30 p.m. ET on the Business Day immediately prior to the Closing Date are collectively referred date hereof. All such filed Contracts (excluding any redacted portions thereof) shall be deemed to herein have been made available to Parent.
(b) Other than the Contracts referenced in Section 3.14(a) that were filed in unredacted form, Section 3.14(b) of the Company Disclosure Letter sets forth a true and complete list, as of the “Material Contracts”):
date of this Agreement, of each Contract to which the Company or any Company Subsidiary is a party and which constitutes: (i) any Contract an agreement that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or limits in any one-year period over its remaining term, other than purchase orders entered into in material respect the ordinary course freedom of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller the Company or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging Company Subsidiary to compete in any line of business or activity sell, supply or distribute any product or service in any geographic region area; (ii) a joint-venture or partnership agreement; (iii) an agreement that involves future expenditures or receipts by the Company or any Company Subsidiary of more than $10,000,000 in which the Business operates, any one year period that cannot be terminated on less than 90 days’ notice without material payment or penalty; (iv) an acquisition agreement that contains “earn-out” or other than any such restrictions contingent payment obligations that are not and would not could reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated result in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed future payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to Company or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures a Company Subsidiary in excess of $1,000,000;
; (ixv) an agreement relating to Indebtedness or that grants or evidences a Lien on any Contract providing for material properties or assets of the grant to Company or any third-party Company Subsidiary in excess of $10,000,000 individually; (vi) other than an easement or a right of way and other than any lease, license or occupancy agreement in the way of easements or rights of way, a Company Real Property Lease and an option, obligation or right of first refusal or other similar rights contractual right to purchase or acquire any real property or interest therein relating to Company Owned Real Property; (vii) a Contract for the purchase of natural gas, electricity, fuel oil, other petroleum product or other energy commodities, emissions allowance, emissions offsets, or renewable energy certificates or similar agreements that relate to renewable or clean energy, or for the purchase of any other item or service that is reasonably expected to result in future payments by the Company or any Company Subsidiary in excess of $10,000,000 in any one year period; (viii) a Contract (A) for the sale by the Company or any of the Business’ Company Subsidiary of materials, supplies, goods, services, equipment or other assets, properties and that involve or businesses;
would reasonably be expected to involve aggregate payments in any one year period to the Company or any Company Subsidiary of $10,000,000 or more, or (xB) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements pursuant to which it is a party for goods the Company or services furnished by or to it, except for any such agreement under which the aggregate remaining liability Company Subsidiary received payments of the Business for indemnification obligations thereunder does not exceed, more than $10,000,000 in the absence years ending December 31, 2011 or December 31, 2012 or expects to receive payments of more than $10,000,000 in the breach of year ending December 31, 2013; (ix) a Contract that requires the Business’ other covenants and agreements under such agreement, $500,000;
(xii) Company or any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business Company Subsidiary to purchase its total requirements of any product or service from such Person, a Person or that contain contains “take or pay” provisions or that contain minimum purchase requirements;
provisions, in each case, requiring the payment of an amount in excess of $5,000,000 per year; (xiiix) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller the Company or any of its Subsidiaries Company Subsidiary has granted pricing or other terms to a Person on a “most favored nation” or similar basis (other than pricing on the basis of standardized tariffs) or a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and Contract pursuant to which the Business obtains Company or any material servicesCompany Subsidiary has agreed to deal with a Person on an exclusive basis; (xi) a Contract that is a wholesale or retail sale contract for fuel oil or other petroleum product, assets natural gas or benefits other than the Overhead electric power including reserve sharing agreements, commodities, emissions allowance, emissions offsets, or renewable energy certificates and Shared Servicessimilar agreements that relate to renewable or clean energy, the Seller Policies and those Contracts entered into involving an annual aggregate amount in connection with, as contemplated by excess of $5,000,000; (xii) an agreement for or otherwise related to the Overhead supply, transportation or storage of coal, natural gas, diesel fuel or other fuel for electric power generation, involving an annual aggregate amount in excess of $5,000,000; (xiii) an agreement for or related to the transmission of electric power, including joint ownership or participation in facilities for the transmission of electric power, involving an annual aggregate amount in excess of $5,000,000; (xiv) a Contract with any Governmental Entity involving an annual aggregate amount in excess of $2,000,000; (xv) a Contract with any (A) current or former director or officer or (B) other affiliate of the Company required to be disclosed in accordance with Item 404(a) of SEC Regulation S-K; (xvi) a Contract that purports to bind any affiliate of the Company other than a Company Subsidiary from engaging in any line of business or operating in any geographical area; (xvii) a Contract with provisions that pursuant to the explicit terms of such Contract may be affected by rating downgrades from one or more rating agencies; (xviii) a Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) for consideration in excess of $10,000,000; (xix) any franchise agreement; and Shared Services (xx) a Contract with any investment banking, commercial banking firm or Business Benefit Plans other similar firm which obligates the Company or any Company Subsidiary in any way on or after the Effective Time, other than relating to Indebtedness as described in clause (v) above. Each Contract of the type described in Section 3.14(a) and Section 3.14(b) is referred to herein as a “Shared ContractsCompany Scheduled Contract”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Company Scheduled Contract is a valid and binding obligation of the Company or the Company Subsidiary party thereto and, to the knowledge of the Company, of the other parties thereto, enforceable against the Company or the Company Subsidiary party thereto and, to the knowledge of the Company, against the other parties thereto in accordance with its terms, except that (A) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors’ rights generally and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefore may be brought; (ii) the Company and the Company Subsidiaries have, and to the knowledge of the Company, any other party thereto has, performed all respective obligations required to be performed by them under the Company Scheduled Contracts and are not (with or without notice or lapse of time, or both) in breach thereunder; and (iii) none of the Company or any Company Subsidiary has any knowledge of, or has received written notice of, any violation or default by it under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Scheduled Contract to which it is a party or by which it or any of its properties or assets is bound or affected.
Appears in 1 contract
Samples: Merger Agreement (UNS Energy Corp)
Contracts. (a) Section 4.12(aExcept for this Agreement, Schedule 4.15(a) of the Seller Disclosure Letter contains Schedules sets forth a true and complete categorized list (orof, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by Agreement, the Business other than in respect following types of the performance of its obligations under Contracts (all such Contracts, whether or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(bSchedule 4.15(a) of the Disclosure Schedules, collectively, the “Material Contracts”), it being understood that Seller Disclosure Letter sets forth shall have no obligation to schedule any purchase orders or sales orders entered into in the Ordinary Course of Business:
i) each Contract that would be required to be filed by Parent as a complete “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
ii) each loan and correct listcredit agreement, as of the date hereofnote, of each debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Seller Parties is outstanding or may be incurred, other than any such Contract between or among any of its Subsidiaries (other than a Transferred Entitythe Seller Parties and any letters of credit;
iii) each Contract to which Seller is a party (A) that by its terms calls for, or which to the Knowledge of Seller is used or held for use reasonably expected to result in, but aggregate payments by or to Seller of more than $50,000 over the remaining term of such Contract or (B) that may not exclusivelybe canceled by Seller upon notice of 90 days or less without material penalty or other material Liability to Seller;
iv) each Contract to which Seller is a party and with respect to which Seller has any continuing obligations, in each case, relating to the acquisition or disposition (or related acquisition or dispositions) by Seller of properties or assets, in each case, (A) for aggregate consideration of more than $50,000, except for acquisitions and dispositions of properties and assets in the Ordinary Course of Business, or that arises out of, but not exclusively, the Business and (B) pursuant to which the Business obtains Seller has continuing “earn-out” or other contingent payment obligations;
v) each Contract of Seller that (A) grants a right of exclusivity, area of protection, right of first offer, right of first refusal or similar right with respect to any business or geographic region; (B) restricts in any material servicesway the ability of Seller to compete with any business or in any geographical area or to solicit customers; or (C) grants “most favored nation” status or is a “requirements” Contract;
vi) each Contract that is a settlement, assets conciliation or benefits other than the Overhead and Shared Servicessimilar agreement (A) that is with any Governmental Authority, the (B) pursuant to which Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts is obligated after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one this Agreement to pay any consideration in excess of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that$50,000, individually or in the aggregate, have for all such settlements, conciliation or similar agreements, or (C) that would 36 4832-2222-1976\19 otherwise limit in any material respect Seller’s operation of the Business as currently operated;
vii) each Contract to which Seller is a party involving the inbound or outbound licensing or grant of any right to use or register (or any consent to or agreement not had to assert any rights with respect to the use or registration of) any Intellectual Property (except for (1) licenses for Off-the-Shelf Software, (2) agreements between Seller, on the one hand, and would not reasonably be expected its employees or consultants, on the other hand, entered into in the Ordinary Course of Business, and (3) non-material non-exclusive licenses entered into in the Ordinary Course of Business);
viii) each Contract that grants to have a Material Adverse Effect. any Person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any assets (other than immaterial assets) of Seller;
ix) each Contract between Seller and any current or former director or officer of Seller or any Person beneficially owning five percent or more of the outstanding Units (other than indemnity agreements with directors or officers of Seller) pursuant to which Seller has made available to Purchaser a complete and correct copy of each written Material Contractcontinuing obligations, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination such Contract that is terminable “at the end of such Material Contract’s term in accordance with its terms.
will” (eor following a notice period imposed by Legal Requirement) Neither Seller nor without any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default obligation on the part of Seller to make any severance, termination, change in control or similar payment or to provide any benefit;
x) any Contract to which Seller is a party containing a standstill or similar agreement pursuant to which Seller has ongoing obligations to not acquire assets or securities of the other party or any of its SubsidiariesAffiliates;
xi) each Contract to which any Principal Customer or Principal Supplier is a party;
xii) each Contract of Seller that relates to a partnership, joint venture or similar arrangement;
xiii) any collective bargaining agreement or other party Contract with a labor union;
xiv) other than the Standard Employment Documents, each written Contract for the employment of any Person on a full-time, part-time, consulting or other basis;
xv) power of attorney granted by or to such Material Contract, nor has Seller with respect to the Business or any of its Subsidiaries received the Purchased Assets;
xvi) each Contract not entered into in the Ordinary Course of Business;
xvii) each Contract under which Seller is (A) lessee of or holds or operates any notice tangible personal property owned by any other Person, or (B) lessor of or permits any other Person to hold or operate any tangible personal property owned or leased by Seller; 4832-2222-1976\19
xviii) each construction contract or other similar Contract entered into by Seller relating to the Construction (all such Contracts, whether or not listed on Schedule 4.15(a) of the Disclosure Schedules, each a “Construction Contract” and collectively, the “Construction Contracts”), and all Certificates of Substantial Completion issued under any such breachconstruction contracts or other similar Contracts; xix) any purchase or sale agreement, defaultlease, event sublease, license or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected other Contract relating to have a Material Adverse Effect.real property; and
Appears in 1 contract
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains Except as set forth in Schedule 5.16, no Acquired Company is a list (or, as applicable, contains a cross-reference party to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):bound by:
(i) any Contract that is required by its terms for the purchase or is currently expected to result in the payment or receipt by the Business sale of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicereal property;
(ii) any Contract entered into with (x) an Affiliatefor the purchase of services, officer materials, supplies or director equipment which involved the payment of Seller more than $1,500,000 in 2014, which can reasonably be expected to involve the payment of more than $1,500,000 in any 12-month period ending on or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entityafter the Closing Date;
(iii) any Contract that restricts for the Business from competing with any Person sale of goods or engaging services which involved the payment of more than $3,000,000 in any line of business or activity in any geographic region in 2014, which the Business operates, other than any such restrictions that are not and would not can reasonably be expected to be material to involve the Business, taken as a wholepayment of more than $3,000,000 in any 12-month period ending on or after the Closing Date;
(iv) any Contract entered into with the customers consignment, distributor, dealer, manufacturer’s representative, sales agency, advertising representative or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personadvertising or public relations Contract;
(v) all Contracts pursuant to which Sellerany guarantee of the obligations of customers, its Subsidiaries suppliers, officers, directors, employees, Affiliates or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)others;
(vi) any joint ventureContract which (A) limits or restricts where any Acquired Company may conduct the Business or the type or line of business in which any Acquired Company may engage, limited liability company (B) grants “most favored nation” status to any other Person, (C) contains “requirements” provisions or partnership Contract with other provisions obligating any third-party involving Acquired Company to purchase or obtain a sharing minimum or specified amount of profitsany product or service from any Person, revenue (D) contains “guaranteed savings” provisions or expensesprovides for rebates or (E) contains minimum sales or volume provisions;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Personwhich provides for, or guarantee by the Business of the obligations of relates to, any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)Indebtedness;
(viii) any Contract to make capital expenditures in excess of $1,000,000with a Governmental Body;
(ix) any Contract for the employment or retention of any individual as an employee or consultant providing for the grant to any third-party annual compensation or fees in excess of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses$100,000;
(x) any Contract entered into with any employee or former employee of an Acquired Company pursuant to which: (A) benefits would vest, amounts would become payable or the customers or suppliers terms of which would otherwise be altered by virtue of the Business listed on Section 4.17 and 4.18 consummation of the Seller Disclosure Letter transactions contemplated by this Agreement (whether alone or upon the occurrence of any additional or subsequent events); (B) any Acquired Company is or may become obligated to make any severance, termination, termination indemnity or redundancy, retention, gross-up or similar payment; and containing (C) any requirement Acquired Company is or may become obligated to grant “most favored nation” pricing make any bonus, incentive compensation or terms similar payment (other than in favor respect of such Personsalary);
(xi) any each Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business provides for indemnification obligations thereunder does not exceedof any officer, in the absence of the breach of the Business’ other covenants and agreements under such agreementdirector, $500,000;employee or agent; or
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any other Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any is material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its termsAcquired Company.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)
Contracts. (a) Section 4.12(a2.16(a) of the Seller Disclosure Letter Schedule (with paragraph references corresponding to those set forth below) contains a true and complete list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts or other arrangements (other than Real Property Leasestrue and complete copies or, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) if none, reasonably complete and accurate written descriptions of the Seller Disclosure Letter which, together with contracts all amendments and supplements thereto and all written waivers of the type described in subclauses (i)-(xiii) entered into after the date hereof and any material terms thereof, have been delivered to Purchaser prior to the Closing Date are collectively execution of this Agreement or will be provided to Purchaser upon request) to which either Deckxx xx Van Houten is a party or by which any of the Assets is bound:
(A) all written Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, and all written Contracts relating to employment or the termination of employment of, any Employee, the name, position and rate of compensation of each Employee party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten commitments (excluding Benefit Plans and any such Contracts referred to herein as the “Material Contracts”):
in clause (iA)) any Contract that is required by its terms or is currently expected involving an obligation of either Deckxx xx Van Houten to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or make payments in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceyear;
(ii) all written Contracts with any Contract entered into Person containing any provision or covenant prohibiting or limiting the ability of either Deckxx xx Van Houten to engage in any business activity or compete with (x) an Affiliateany Person in connection with the Business or, officer except as provided in Section 4.11, prohibiting or director of Seller or any of its Subsidiaries or limiting the ability of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred EntityPerson to compete with either Deckxx xx Van Houten in connection with the Business;
(iii) any Contract that restricts the Business from competing all partnership, joint venture, shareholders' or other similar written Contracts with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to connection with the Business, taken as a whole;
(iv) any Contract entered into all written Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom either Deckxx xx Van Houten deal in connection with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such PersonBusiness;
(v) all written Contracts pursuant relating to which Seller, its Subsidiaries the future disposition or acquisition of any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)Assets;
(vi) all collective bargaining or similar labor Contracts covering any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;Employee; and
(vii) any Contract evidencing an outstanding loanall other written Contracts (other than Benefit Plans, advance or investment by the Real Property Leases and insurance policies listed in Section 2.18(a) of the Disclosure Schedule) with respect to the Business that (A) involve the payment or potential payment, pursuant to or in any Person, or guarantee by the Business of the obligations terms of any Person in respect of any Liability of such PersonContract, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability either Deckxx xx Van Houten of the Business for indemnification obligations thereunder does more than $5,000 annually and (B) cannot exceed, be terminated within thirty (30) days after giving notice of termination without resulting in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers a cost or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business penalty to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Businesseither Deckxx xx Van Houten.
(b) To the Knowledge of Deckxx, Xxn Houten and Willxxx Xxx Xxxxxx, xxch Contract required to be disclosed in Section 4.12(b2.16(a) of the Seller Disclosure Letter sets forth a complete Schedule is in full force and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business effect and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is constitutes a legal, valid and binding obligation of Seller or one of its Subsidiariesagreement, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e, of each party thereto; and except as disclosed in Section 2.16(b) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract andthe Disclosure Schedule, neither Deckxx xxx Van Houten, to the Knowledge of SellerDeckxx, no other party to Xxn Houten or Willxxx Xxx Xxxxxx, xx, or has received notice that either Deckxx xx Van Houten is, in violation or breach of or default under any such Material Contract is in breach (or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a would be in violation or breach of or default on under any such Contract) in any material respect.
(c) Except as disclosed in Section 2.16(c) of the part Disclosure Schedule, (i) the execution, delivery and performance by Sellers and Willxxx Xxx Xxxxxx xx this Agreement and the Operative Agreements to which either is a party, and the consummation of Seller the transactions contemplated hereby and thereby, will not (A) result in or give to any Person any right of termination, cancellation, acceleration or modification in or with respect to, (B) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under, or (C) result in the creation or imposition of any Lien upon either Deckxx xx Van Houten, as the case may be, or any of its Subsidiariestheir Assets and Properties under, or any other Business Contract, and (ii) neither Deckxx, Xxn Houten nor Willxxx Xxx Xxxxxx xx a party to such Material Contractor bound by any Business Contract that has been or could reasonably be expected to be, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregateaggregate with any other Business Contracts, has not had and would not reasonably be expected materially adverse to have a Material Adverse Effectthe Condition of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pam Transportation Services Inc)
Contracts. (a) Except for this Agreement, as set forth in Section 4.12(a2.9(a) of the Seller Company Disclosure Letter contains Schedule, and the Company Contracts with the Major Customers, neither the Company nor any of its Subsidiaries is a list (or, as applicable, contains a cross-reference party to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts or bound by any contract currently in effect (other than Real Property Leases, Benefit Plans a Company Plan or Employment Agreements) (the contracts listed on Section 4.12(a) a Company Contract in respect of the Seller Disclosure Letter together with contracts Leased Real Property) that as of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):of this Agreement:
(i) (A) required expenditures by the Company or any Contract that Subsidiary thereof in excess of $500,000 for the 2016 fiscal year or (B) is required expected to require expenditures by its terms the Company or any Subsidiary thereof in excess of $500,000 per annum during the 2017 fiscal year or any year thereafter;
(ii) (A) resulted in revenues to the Company or any Subsidiary thereof in excess of $500,000 for the 2016 fiscal year or (B) is currently expected to result in revenues to the payment Company or receipt by any Subsidiary thereof in excess of $500,000 per annum during the Business of more than $1,000,000 in the current 2017 fiscal year or any year thereafter;
(iii) (A) contains any non-compete or exclusivity provisions that restrict the conduct of any line of business by the Company or any Subsidiary of the Company or in any one-geographic area, (B) contains a right of first refusal, first offer or first negotiation with respect to any asset owned by the Company or its Subsidiaries that is material to the Company and its Subsidiaries or (C) contains any “most favored nation” or similar provision;
(iv) provides for (A) a license or other grant of rights to the Company or any Subsidiary of the Company from a third party of IP Rights (other than Ordinary Course Inbound Licenses), (B) a license or other grant of rights by the Company or any Subsidiary of the Company to a third party of IP Rights (other than Ordinary Course Outbound Licenses) or (C) the development of any IP Rights by a third party on behalf of the Company or any Subsidiary of the Company, in each case, which provided for payments to or from the Company or any Subsidiary thereof in excess of $250,000 for the 2016 fiscal year, or is expected to provide for payments to or from the Company or any Subsidiary thereof in excess of $250,000 per annum during the 2017 fiscal year period over or any year thereafter;
(v) is a partnership, joint venture, limited liability company or similar arrangement or agreement relating to the formation, creation, operation, management or control of any partnership or joint venture with a third party;
(vi) (A) that is a capital lease obligation of the Company or its remaining termSubsidiaries, or (B) pursuant to which any Indebtedness (other than as described in subclause (A)) of the Company or any Subsidiary of the Company, in each case, in an aggregate principal amount in excess of $500,000 is outstanding, other than purchase orders entered into any contract between or among the Company and/or wholly-owned Subsidiaries of the Company;
(vii) provides for a guarantee by the Company or any Subsidiary of the Company of Indebtedness of any third party;
(viii) provides for the acquisition or disposition by the Company or any Subsidiaries of the Company of any properties or assets (except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate), officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries Company or any Transferred Entity receives or grants a license to material Intellectual Property from or to Subsidiary of the Company has any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms)ongoing indemnification, (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure earn-out or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000contingent obligations;
(ix) any Contract providing provides for the grant to settlement of one or more claims against the Company or any third-party of any right of first refusal or other similar rights to purchase any Subsidiary of the Business’ assets, properties Company pursuant to which the Company or businessesany Subsidiary of the Company is obligated to make a payment in excess of $100,000 individually;
(x) any Contract entered into collective bargaining agreements with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personlabor union;
(xi) relates to indebtedness for borrowed money owed to the Company or any Contract providing for onof its Subsidiaries other than any contract between or among the Company and/or wholly-going indemnification obligations as owned Subsidiaries of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Company;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsis a collocation agreement;
(xiii) any Contract which involves is a channel partner agreement that required expenditures by the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller Company or any Subsidiary thereof in excess of its Subsidiaries$100,000 during the 2016 fiscal year or is expected to result in required expenditures by the Company or any Subsidiary thereof in excess of $100,000 per annum during the 2017 fiscal year or any year thereafter; andor
(xiv) any Contract would prohibit or is reasonably likely to materially delay the consummation of the Merger. All contracts of the type listed in subsections (i)-(xiv) of Section 2.9(a) of the Company Disclosure Schedule, together with any employee leasing all interconnection agreements to which the Company or staffing company by which such employee leasing or staffing company’s employees or contractors provide services a Subsidiary thereof is a party (each, an “Interconnection Agreement”), are collectively referred to the Businessherein as “Material Contracts”.
(b) Section 4.12(b) of Neither the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, Company nor any Subsidiary of Sellerthe Company is in breach of or default under the material terms of any Material Contract. To the Knowledge of the Company, or to Seller’s Knowledge, any no other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach of or default under any Material Contract and, to the Knowledge material terms of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.any
Appears in 1 contract
Contracts. (a) Section 4.12(a3.13(a) of the Seller Company Disclosure Letter contains Schedule sets forth a true and complete list (or, as applicable, contains a cross-reference to another Section of each Contract of the Seller Disclosure Letter Company or any Company Subsidiary, that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each is included within any of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
categories: (i) any Contract that is required by its terms materially limits the freedom of the Company, any Company Subsidiary or is currently expected any of the Company’s current or future affiliates to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or compete in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course line of business consistent with past practice;
or sell, supply or distribute any product or service, in each case, in any geographic area, or to hire any individual or group of individuals, (ii) any Contract entered into with (x) an Affiliate, officer that by its terms limits the payment of dividends or director of Seller other distributions by the Company or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
Company Subsidiary, (iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other right of first offer or similar rights right or that limits or purports to purchase any limit the ability of the Business’ assetsCompany of any Company Subsidiary to own, properties operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses;
, (iv) any Contract for the acquisition of a business or Person that was entered into outside the ordinary course of business and that contains ongoing material obligations of the Company or any Company Subsidiary, (v) any divestiture or disposition Contract that contains ongoing indemnification or other material obligations of the Company or any Company Subsidiary, (vi) each Contract relating to indebtedness for borrowed money or the guaranty of repayment of indebtedness for borrowed money, except for any such Contract with an aggregate outstanding principal amount not exceeding $1,000,000 and which may be prepaid on not more than 30 days’ notice without the payment of any penalty, (vii) any lease, sublease or other Contract with respect to the Leased Real Property (“Lease Agreement”) involving payments by the Company or the Company Subsidiaries in excess of $2,000,000 in 2010 or any year thereafter, (viii) any Contract pursuant to which the Company or any Company Subsidiary has granted most favored nation pricing to any third party and which obligations will be effective after the date of this Agreement; (ix) any joint development Contract; (x) all Contracts, other than licenses to Commercially Available Software, pursuant to which the Company or any Contract entered Company Subsidiary obtains the right or license to embed the Intellectual Property or Software of any third party into with the customers Company Products or suppliers otherwise sells the Intellectual Property or Software of any third party pursuant to Contracts of the Business listed on Section 4.17 Company or any Company Subsidiary and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing end-customer under the Company’s or terms in favor of such Person;
a Company Subsidiary’s name; (xi) any Contract providing for on-going indemnification relating to the settlement of any civil, administrative or judicial proceedings that contains ongoing obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts Company or other arrangements to which it is a party for goods any Company Subsidiary; or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), other than those “material contracts” described in Item 601(b)(10)(ii) of Regulation S-K of the SEC. Each Contract (A) of the type described in this Section 3.13(a), whether or not disclosed in response to this Section 3.13(a), and (B) of the type required to be disclosed in Section 3.15 of the Company Disclosure Schedule, whether or not disclosed in Section 3.15 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessSEC.
(bi) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Each Company Material Contract is a legalvalid, valid binding and binding enforceable obligation of Seller the Company or one the Company Subsidiaries and, to the knowledge of its Subsidiariesthe Company, enforceable against such Person of the other party or parties thereto, in accordance with its terms and, subject to Seller’s Knowledge, each other party thereto, and is in full force and the effect subject in all cases to of any applicable bankruptcy, insolvencyinsolvency (including, without limitation, all Laws relating to fraudulent transfers), reorganization, moratorium or other Laws similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity, equity (regardless of whether considered in a proceeding at law or in equity equity); (ii) none of the execution, delivery or at Lawperformance of this Agreement by the Company, except for such failures or the consummation of the Offer or the Merger, will require the consent of any party to a Company Material Contract or impair the Company’s or any Company Subsidiaries’ rights, or alter their respective obligations under, or give any third party any rights of termination, amendment, payment, acceleration or cancellation of, or result in the creation of a Lien on the properties or assets of the Company or any Company Subsidiary, pursuant to any Company Material Contract; (iii) the Company and each Company Subsidiary has in all material respects performed all obligations required to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of performed by it under each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Company Material Contract and, to the Knowledge knowledge of Sellerthe Company, each other party to each Company Material Contract has in all material respects performed all obligations required to be performed by it under such Company Material Contract; (iv) none of the Company nor any Company Subsidiary has received written notice of, and the Company otherwise has no knowledge of, any violation or default under any Company Material Contract; and (v) neither the Company nor any Company Subsidiary has received any written notice from any other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Company Material Contract, nor and the Company otherwise has Seller no knowledge, that such party intends to terminate, or any of its Subsidiaries received any notice of not renew, any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse EffectContract.
Appears in 1 contract
Samples: Merger Agreement (Sybase Inc)
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) Except for those Contracts (A) filed as exhibits to the Company Reports or (B) that have expired as of the date of this Agreement and other than this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any Contract as of the date of this Agreement:
(A) that would be required to be filed by the Company with the SEC pursuant to Item 601(b) (10) of Regulation S-K under the Securities Act;
(B) containing covenants of the Company or any of its Subsidiaries purporting to limit in any material respect any line of business, industry or geographical area in which the Company or its Subsidiaries may operate or granting material exclusive rights to the counterparty thereto;
(C) with any Affiliate or that would be required to be disclosed by Section 404(a) of Regulation S-K under the Exchange Act;
(D) providing for indemnification by the Company or any of its Subsidiaries of any Person, except for any such Contract that is required by (x) not material to the Company or any of its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders Subsidiaries and (y) entered into in the ordinary course of business consistent with past practicebusiness;
(iiE) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $25 million,
(F) containing any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person, except for any such Contract that is a confidentiality, non-disclosure or similar type of agreement entered into in the ordinary course of business;
(G) other than with (x) an Affiliaterespect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, officer any partnership, joint venture or director other similar agreement or arrangement relating to the formation, creation, operation, management or control of Seller any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $10 million without regard to percentage voting or economic interest;
(H) relating to or evidencing Indebtedness in excess of $1 million individually or $5 million in the aggregate;
(I) that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the sale of any Transferred Entity material business of the Company and its Subsidiaries, taken as a whole, or of any Subsidiary of the Company;
(J) (i) entered into after January 1, 2010, and not yet consummated, for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $10 million individually, or $15 million in the aggregate, other than purchases of inventory or similar assets in the ordinary course of business, or (yii) for any entity controlled acquisition, directly or indirectly (by an officer merger or director otherwise), of Seller assets or capital stock or other equity interests of any Person, pursuant to which the Company or any of its Subsidiaries has continuing "earn out" or other similar contingent payment obligations (but excluding indemnification obligations with respect to any retained liabilities or breaches of any Transferred Entityrepresentations, warranties or covenants);
(iiiK) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in is (i) an agreement pursuant to which the Business operates, Company or any of its Subsidiaries licenses or is otherwise permitted by a third party to use any material Intellectual Property (other than any "shrink wrap", "commercially available software package", or "click through" license), or (ii) an agreement pursuant to which a third party licenses or is otherwise permitted to use any material Intellectual Property owned by the Company or any of its Subsidiaries, in each case of clauses (i) and (ii) where such restrictions that are not and would not reasonably be expected to be agreement is material to the Businessbusiness of the Company and its Subsidiaries, taken as a whole;
(ivL) with any Contract entered into with the customers or suppliers customer of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter Company or any Subsidiary or any other Person pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, Company and its Subsidiaries or any Transferred Entity receives or grants a license reasonably expect to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed receive aggregate payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,00010 million in any calendar year other than purchase orders issued in the ordinary course;
(ixM) with any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any supplier of the Business’ assets, properties Company or businesses;
(x) any Contract entered into with Subsidiary or any other Person pursuant to which the customers or suppliers Company and its Subsidiaries reasonably expect to make aggregate payments in excess of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing $5 million in any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business calendar year other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, purchase orders issued in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiariesordinary course; and
(xivN) any that is a mortgage, pledge, security agreement, deed of trust or other Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth granting a complete and correct listLien, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred EntityPermitted Lien, on any material property or asset of the Company or any Subsidiary thereof (each such Contract described in clauses (A) through (N) is referred to herein as a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”"Material Contract").
(cii) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date For purposes of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.:
Appears in 1 contract
Samples: Merger Agreement (Nbty Inc)
Contracts. (a) Neither the Company nor, to the Company’s Knowledge, any other party, is in default in the performance, observance or fulfillment of any of the material obligations, covenants or conditions contained in any Material Contracts to which it is a party; and, to the Knowledge of the Company, there has not occurred any event that, with the lapse of time or giving of notice or both, could constitute such a default.
(b) Section 4.12(a4.18(b) of the Seller Company Disclosure Letter contains sets forth a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by of (i) all agreements or contracts regarding the Business acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise (including any such agreement or contract that has closed but under which one or more of the parties has executory indemnification, earn-out or other than in respect liabilities) to which the Company is a party, (ii) all credit agreements, indentures, and other agreements related to any indebtedness for borrowed money of the Company, (iii) all joint venture or other similar agreements to which the Company is a party, (iv) all material lease agreements to which the Company is a party, (v) contracts under which the Company has advanced or loaned any other person any material amounts, (vi) guarantees of any obligations, (vii) contracts or groups of related contracts with the same party or group of parties the performance of its obligations which involves annual consideration in excess of $100,000 which are not cancelable by the Company on thirty (30) days’ or less notice without premium or penalty, (viii) each supply agreement and each “single source” supply contract pursuant to which goods or materials that are material to the Company’s business are supplied to the Company from an exclusive source, (ix) each exclusive sales representative or exclusive distribution contract to which the Company is a party, (x) agreements under Contracts which the Company has granted any person registration rights (including demand and piggy-back registration rights), (xi) all contracts or agreements purporting to restrict or prohibit the Company from engaging or competing in any business or engaging or competing in any business in any geographic area, (xii) all employment, consulting, retention, severance, change in control, non-competition, termination or indemnification agreements between the Company and any director or officer of the Company or any other employee earning noncontingent cash compensation in excess of $100,000 per year, (xiii) all labor agreements, collective bargaining agreements or other arrangements labor related contracts (including work rules and practices) to which it the Company is a party for goods with respect to any labor union, labor organization, trade union, works council or services furnished by similar organization or to itassociation of employees, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract all licenses, consents to use, non-assertion agreements and coexistence agreements concerning Intellectual Property to which the Company is a party and material software used by the Company other than non-customized software subject to customary “shrink-wrap” or “click-through” type contracts (the “Material Licenses”), (xv) each contract to which the Company is a party with any employee leasing Governmental Authority, (xvi) any contract which provides for termination, acceleration of payment or staffing company by other special rights upon the occurrence of a change in control of the Company and (xvii) all other contracts which such employee leasing or staffing company’s employees or contractors provide services are material to the BusinessCompany taken as a whole (collectively, the “Material Contracts”). The Company has made available to Buyer a correct and complete copy of each agreement listed in Section 4.18(a) of the Company Disclosure Letter.
(bc) No Material Contract will, by its terms, terminate as a result of the transactions contemplated hereby or require any consent from any party thereto in order to remain in full force and effect immediately after the Effective Time.
(d) Section 4.12(b4.18(d) of the Seller Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As , of all agreements of the date hereof, none Company with any executive officer or director of Seller, any Subsidiary the Company. No officer or director of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its SubsidiariesCompany, or any other party to “associate” (as such Material Contract, nor has Seller or any of its Subsidiaries received any notice term is defined in Rule 14a-1 under the Exchange Act) of any such breach, default, event officer or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregatedirector, has not had and any interest in any contract or property (real or personal, tangible or intangible), used in, or pertaining to the business of the Company which interest would not reasonably be expected required to have a Material Adverse Effectbe disclosed pursuant to Item 404(a) of Regulation S-K promulgated by the SEC.
Appears in 1 contract
Samples: Merger Agreement (Curagen Corp)
Contracts. (a) Section 4.12(a3.9(a) of the Seller Company Disclosure Letter contains Schedule identifies each Contract to which any Acquired Company is a list (orparty, or by which it is bound, that constitutes a Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which any Acquired Company is a party or Employment Agreements) (the contracts listed on Section 4.12(a) by which it is bound as of the Seller Disclosure Letter together with contracts date of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the this Agreement constitutes a “Material ContractsContract”)::
(i) any Contract that is a settlement, conciliation or similar Contract with or approved by any Governmental Body and pursuant to which (A) an Acquired Company will be required after the date of this Agreement to pay monetary obligations in excess of $100,000 or (B) that contains material obligations or limitations on such Acquired Company’s conduct;
(ii) any Contract (A) that purports to materially limit the freedom or right of any Acquired Company to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, (C) containing exclusivity obligations or otherwise purports to materially limit the freedom or right of any Acquired Company to sell, distribute or manufacture any products or services for any other Person, or (D) imposing a restriction on the right or ability to solicit, hire or retain any Person as an employee, consultant or independent contractor, or to perform services for any other Person;
(iii) any Contract that requires by its terms or is currently reasonably expected to result in require the payment or receipt by the Business delivery of more than cash or other consideration to any Acquired Company in an amount having an expected value in excess of $1,000,000 in the current fiscal year ending December 31, 2023 or by any Acquired Company in any one-an amount having an expected value in excess of $500,000 in the fiscal year period over its remaining termending December 31, 2023 (other than purchase orders Contracts or policies with respect to insurance) and in each case which cannot be cancelled by such Acquired Company without penalty or further payment without more than ninety (90) days’ notice;
(iv) any Contract relating to Indebtedness in excess of $250,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company;
(v) any Contract with any Person constituting a joint venture, collaboration, partnership or similar profit sharing arrangement;
(vi) any Contract (excluding any Employee Plan) that by its express terms requires an Acquired Company, or any successor to, or acquirer of, an Acquired Company, to make any payment to another Person as a result of a change of control of such Acquired Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(vii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock, ordinary shares or other equity interests of an Acquired Company, the pledging of the capital stock, ordinary shares or other equity interests of an Acquired Company or the issuance of any guaranty by an Acquired Company;
(viii) any (A) In-bound License and (B) Out-bound License;
(ix) each Contract related to the acquisition or divestiture of a business or material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations);
(x) any stockholders, investors rights, registration rights or similar Contract;
(xi) except for Contracts entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are and not and would not reasonably be expected to be otherwise material to the BusinessCompany, taken as a whole;
(iv) any Contract entered into with the customers which provides for a loan or suppliers advance of any amount to any employee of the Business listed on Section 4.17 and 4.18 Company or any temporary agency employee, consultant or other independent contractor of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Acquired Companies;
(xii) any Contracts entered into Contract that relates to any swap, forward, future, or other similar derivative transaction with the customers or suppliers a notional value in excess of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements$250,000;
(xiii) any Contract which involves the sale, transfer or acquisition that provides for indemnification by any Acquired Company of any business to current or by any third party that was entered into since May 21former officer, 2015 and that contains any material continuing obligations of Seller director or any of its Subsidiaries; andemployee;
(xiv) any Government Contract;
(xv) any material Real Property Lease;
(xvi) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(xvii) any collective bargaining agreement or other Contract with any employee leasing labor organization;
(xviii) any Contract for the employment of any individual with any Acquired Company with base salary in excess of $250,000 per annum that is not terminable upon notice of thirty (30) days or staffing company less;
(xix) any Contract providing for the retention, engagement or termination of any temporary agency employee, consultant or other independent contractor of any Acquired Company with compensation or payments in excess of $100,000 per annum that is not terminable upon notice of thirty (30) days or less;
(xx) any Contract entered into by which any Acquired Company since January 1, 2021, for the settlement of any Legal Proceeding that has not been satisfied or discharged in full (other than a release of claims);
(xxi) any other Contract, if a breach or termination of such employee leasing Contract would reasonably be expected to have or staffing company’s employees or contractors provide services to the Businessresult in a Material Adverse Effect.
(b) Section 4.12(b) As of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As , the Company has either delivered or made available to Parent an accurate and complete copy of each Material Contract or has publicly made available such Material Contract in the XXXXX database of the date hereofSEC. No Acquired Company nor, none to the Knowledge of Sellerthe Company, the other party to a Material Contract is in material breach of, or material default under, any Subsidiary of SellerMaterial Contract and no Acquired Company, or to Seller’s Knowledgethe Knowledge of the Company, any the other party to any a Material Contract has exercised taken or failed to take any termination rights action that with or indicated to Seller either orally without notice, lapse of time or in writing such party’s intent to terminate such both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Acquired Companies and, to the Knowledge of the Company, the other party, a valid and binding agreement in each case other than any termination at the end of such Material Contract’s term full force and effect, enforceable in accordance with its terms.
(e) Neither Seller nor , except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. Since January 1, 2021, the Acquired Companies have not received or delivered any of its Subsidiaries is in written notice regarding any material violation or breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectsince been cured.
Appears in 1 contract
Samples: Merger Agreement (Bsquare Corp /Wa)
Contracts. As of the date hereof, neither the Company nor any of its Subsidiaries is a party to, subject to or otherwise bound by:
(a) Section 4.12(aany Contract or series of related Contracts pursuant to which the Company or any of its Subsidiaries has made aggregate expenditures or payments in excess of $50,000 in the past twelve (12) months and for which the Company or any of its Subsidiaries has ongoing obligations or rights thereunder;
(b) any Contract for the Seller Disclosure Letter contains a list purchase of equipment in excess of $100,000;
(or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(ac) which applies to such Contract, of each of the following Transferred Contracts any Contract (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) a Contract entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice) that expires more than one year after the date of this Agreement ;
(iid) any Contract entered into for distribution of Company products between the Company or any of its Subsidiaries, on the one hand, and any other Person, on the other hand, wherein or whereby the Company or any of its Subsidiaries have agreed to, or assumed, any obligation or duty to indemnify, reimburse, hold harmless, guarantee or otherwise assume or incur any obligation or liability or provide a right of rescission with (x) an Affiliate, officer respect to the infringement or director of Seller misappropriation by the Company or any of its Subsidiaries or such other Person of the Intellectual Property of any Transferred Entity Person other than the Company or any of its Subsidiaries and under which the Company’s or its Subsidiaries’ liability for such obligation is not capped at a particular dollar amount;
(ye) any entity controlled by an distributor, reseller or similar Contract under which the Company does not have the right to terminate without penalty on less than 90 days’ notice;
(f) any Contract with any current or former stockholder, employee, officer or director of Seller the Company, or any “affiliate” or “associate” of such persons (as such terms are defined in the rules and regulations promulgated under the Securities Act) (any of the foregoing, a “Related Party”), including any Contract providing for the furnishing of services by, rental of real or personal property from, or otherwise requiring payments to, or from, any Related Party, other than Contracts with customers, distributors or resellers;
(g) any Contract limiting the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any Company Intellectual Property, or any Contract under which the Company or any Subsidiary grants most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or any Contract otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services;
(h) all licenses, sublicenses and other Contracts as to which the Company or any Subsidiary is a party and pursuant to which any Person is authorized to use any Company Intellectual Property, other than Contracts with customers, distributors or resellers for Company products;
(i) other than “shrink wrap” and similar generally available commercial end-user licenses to software that is not redistributed with or used in the development or provision of the Company products that have an individual acquisition cost of $25,000 or less, all licenses, sublicenses and other Contracts to which the Company or any Subsidiary is a party and pursuant to Table of Contents which the Company or any Subsidiary acquired or is authorized to use any Intellectual Property of a third party (other than a nondisclosure or confidentiality Contract );
(j) all licenses, sublicenses and other Contracts pursuant to which the Company or any of its Subsidiaries has agreed to any restriction on the right of the Company or any of its Subsidiaries to use or enforce any Company Intellectual Property or pursuant to which the Company or any Subsidiary agrees to encumber, transfer or sell rights in or with respect to any Company Intellectual Property;
(k) any Contract providing for the development of any software, content, technology or Intellectual Property, independently or jointly, by or for the Company or any Subsidiary;
(l) any trust, loan agreement, indenture, note, bond, debenture or any other document or Contract evidencing Indebtedness to any Person, any capitalized lease obligation, or any commitment to provide any of the foregoing, or any agreement of guaranty, indemnification or other similar commitment with respect to the obligations or Liabilities of any other Person;
(m) any Contract for the disposition of any material portion of the assets or business (whether by merger, sale of stock, sale of assets or otherwise) of the Company or any of its Subsidiaries;
(n) any Contract for the acquisition of the business or capital stock of another party (whether by merger, sale of stock, sale of assets or otherwise);
(o) any Contract concerning a joint venture, joint development or other similar arrangement with one or more Persons;
(p) any hedging, futures, options or other derivative Contract;
(q) any Contract creating any obligation with respect to the payment of any severance, retention, bonus, success, change of control or other similar payment to any Person, the payment or acceleration of which is triggered by the Company entering into this Agreement, or the consummation of any of the transactions contemplated hereby or any subsequent transactions or events;
(r) any Contract for the employment of any director, officer, employee or consultant of the Company or any of its Subsidiaries or any other type of Contract with any Transferred Entityofficer, employee or consultant of the Company or any Subsidiary that is not immediately terminable by the Company or such Subsidiary without cost or Liability, including any Contract requiring it to make a payment to any director, officer, employee or consultant on account of the Merger, any transaction contemplated by this Agreement or any Contract that is entered into in connection with this Agreement;
(iiis) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in under which the Business operates, other than Company or any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) of its Subsidiaries has sold any Contract entered into with the customers products or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter provided any services pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, Company or any of its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed has received aggregate payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000100,000 since March 21, 2007;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xivt) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller labor union or any of its Subsidiaries (other than a Transferred Entity) is a party that is used collective bargaining agreement or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance similar contract with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.employees;
Appears in 1 contract
Samples: Merger Agreement (Vmware, Inc.)
Contracts. (a) Section 4.12(a3.14(a) of the Seller Disclosure Letter contains Schedules sets forth a list (or, as applicable, contains a cross-reference to another Section of all Contractual Obligations of the Seller Disclosure Letter Acquired Companies of the types described below that lists), organized according to each subsection are in effect on the date of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):Agreement: Active 37496756.2 35
(i) any Contract that is required by its terms Contractual Obligation (or is currently expected group of related Contractual Obligations) for the sale of products or services to result in any customer or for the payment purchase of products or receipt by services from any supplier, from which the Business of more than associated revenues or costs, as the case may be, exceeded Five Million Dollars ($1,000,000 in 5,000,000) during the current fiscal year or in any one-year period over its remaining termended on November 30, other than purchase orders entered into in the ordinary course of business consistent with past practice2017;
(ii) all partnership or joint venture agreements to which any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred EntityAcquired Company is party;
(iii) any Contract that restricts Contractual Obligation (or group of Contractual Obligations) under which the Company or the Company Subsidiaries have created, incurred, assumed or guaranteed any Debt, or under which it has permitted any Asset to become encumbered by a Lien (other than by a Permitted Lien);
(iv) any Contractual Obligation which imposes a material restriction on the geographies in which any Acquired Company may operate the Business from competing or limits the freedom of any Acquired Company to compete with any Person or engaging other Person, in any line of business or activity in prohibits the sale of any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personproducts by an Acquired Company;
(v) all Contracts pursuant to which Sellerany employment agreement of the Acquired Companies with an employee, its Subsidiaries consultant or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) independent contractor whose cash compensation during the fiscal year ended on general commercial terms and that continues to be widely available on such commercial terms)November 30, (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars 2017 exceeded Two Hundred Thousand Dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”200,000);
(vi) any joint ventureContractual Obligation or plan (including any stock option, limited liability company merger or partnership Contract with stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any third-party involving a sharing shares of profits, revenue Common Stock or expensesany other securities of the Company or any Company Subsidiary or any Company Convertible Securities;
(vii) any Contract evidencing an outstanding loan, advance Contractual Obligation with any union or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)collective bargaining agreements;
(viii) any Contract to make capital expenditures agency, dealer, distributor, sales representative, marketing or other similar Contractual Obligation that involves payment by any Acquired Company of consideration in excess of Two Hundred Fifty Thousand Dollars ($1,000,000250,000) during the fiscal year ended on November 30, 2017;
(ix) any Contract providing for the grant to lease of real property or any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businessesmaterial capital lease;
(x) any Contract entered into with Contractual Obligation pursuant to which the customers Company or suppliers a Company Subsidiary has acquired or is currently under an obligation to acquire a business or entity, or substantially all of the Business listed on Section 4.17 and 4.18 assets of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing a business or terms in favor entity, whether by way of such Personmerger, consolidation, purchase of stock, purchase of assets, license or otherwise;
(xi) any Contract providing for on-going indemnification settlement agreement with ongoing material obligations as on the part of the date of this Agreement by Company or the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Company Subsidiaries;
(xii) any Contracts entered into with Contractual Obligations, including options, to sell or lease (as lessor), but excluding any Contractual Obligations for the customers sale of products or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.any
Appears in 1 contract
Contracts. (a) Section 4.12(a) of the The Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of lists each of the following Transferred categories of Contracts (other than Real Property Leasescollectively, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):), and true, correct and complete copies of all Material Contracts to which any of the Acquired Companies is a party or by which any Acquired Company is bound or otherwise relating to the UCI Businesses have been made available by Seller to Purchaser:
(a) Contract (i) any Contract that is required by its terms or is currently expected to result in containing a covenant limiting the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or freedom of any Transferred Entity Acquired Company (or (yPurchaser or its Affiliates after the Closing) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging to engage in any line of business or activity in any geographic region area or to compete with any Person or (ii) containing any “change in which control” or similar provision that could result in a Liability or other Loss of $100,000 or more as a result of the Business operates, consummation of the Transactions;
(b) UCI Employment Agreement that has (i) annual guaranteed cash compensation and other benefits (or severance) in excess of $100,000 and is not terminable by the relevant Acquired Company by notice of not more than 90 days for a cost of less than $100,000; or (ii) any severance Liabilities;
(c) Contract with (i) Seller or any Affiliate of Seller (other than any such restrictions that are not and would not reasonably be expected to be material to the BusinessAcquired Company) or (ii) any current or former officer, taken as a wholedirector or employee of Seller (or any Affiliate of Seller) or any Acquired Company (other than UCI Employment Agreements covered by clause (b) above);
(ivd) Contract under which (i) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party any Acquired Company) has directly or indirectly guaranteed Liabilities of any Acquired Company or (Aii) on general commercial terms and that continues to be widely available on such commercial terms)any Acquired Company has directly or indirectly guaranteed Liabilities of any Person (other than any Acquired Company) (in each case, (B) that is not distributed with which guarantee obligation exceeds $100,000 individually or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) 500,000 in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”aggregate);
(vie) Contract that contains an obligation on the part of any joint ventureAcquired Company to utilize Manufacturing services or Distribution services, limited liability company other than a Contract that is terminable without penalty or partnership Contract with any third-party involving a sharing of profits, revenue or expensesother Liability on no more than 90 days’ notice by the relevant Acquired Company;
(viif) Contract creating an Encumbrance upon any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts assets that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect thatare material, individually or in the aggregate, have not had to the UCI Businesses, taken as a whole, or upon any capital stock or other ownership interests in any Acquired Company;
(g) power of attorney or similar instrument (other than immaterial ones made in the ordinary course of business);
(h) Contract (other than this Agreement) for the sale of any of the assets of the UCI Businesses (including any capital stock or other ownership interest in any Acquired Company) after the date hereof (other than sales of Phonorecords in the ordinary course of the UCI Businesses consistent with past practice);
(i) Contract providing for indemnification by the relevant Acquired Company of any Person with respect to Liabilities relating to any current or former business of the relevant Acquired Company or any predecessor Person;
(j) Contract relating to all (or a material Contract relating to any part) of the UCI Owned Intellectual Property Rights or the UCI Licensed Intellectual Property Rights (including any license or other agreement under which the relevant Acquired Company is licensee or licensor of any Intellectual Property Rights), other than Artist Contracts, Production/Label Contracts and would not reasonably be expected to have a Material Adverse Effect. Seller Music Publishing Contracts;
(k) Contract under which any Acquired Company has made available to Purchaser a complete borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any Person or any other note, bond, debenture or other evidence of indebtedness of any Acquired Company (“Debt Arrangements”) (it being understood and correct copy of each written Material Contract, in each caseagreed that, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereofClosing Date, none of Sellerthe Acquired Companies shall be party to or otherwise bound by any Debt Arrangements except for Inter-Company Liabilities to the extent permitted under Section 1.03(b));
(l) Contract under which any relevant Acquired Company has, directly or indirectly, made or may be required to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Subsidiary Person (other than extensions of Sellertrade credit in the ordinary course of the UCI Businesses consistent with past practices and set forth on the Balance Sheet), in any such case which such advance, loan, extension of credit, capital contribution or other investment, individually, is in excess of $100,000, other than Artist Contracts, Production/Label Contracts and Music Publishing Contracts;
(m) collective bargaining agreement, workers’ council agreement or other labor union agreement covering UCI Employees;
(n) Contract requiring expenditures in excess of $100,000, other than (i) Artist Contracts, Production/Label Contracts and Music Publishing Contracts and (ii) Contracts that are cancellable or terminable with no more than 30 days’ notice by any Acquired Company without penalty;
(o) real property leases and subleases to which any Acquired Company is party (whether as tenant, sublandlord or subtenant or otherwise);
(p) policies of insurance whereby an Acquired Company is the policy holder;
(q) joint venture or similar arrangements;
(r) Contract with any Subagent;
(s) Contracts with collection or publishing or music rights societies;
(t) Contracts (other than Artist Contracts and Production/Label Contracts) under which any Acquired Company is required to provide television or radio advertising support;
(u) Artist Contracts, Production/Label Contracts and Music Publishing Contracts under which any Acquired Company has, directly or indirectly, made or may be required to make any loan (other than artist advances), extension of credit or capital contribution to, or to Seller’s Knowledgeother investment in, any Person, which such loan, extension of credit, capital contribution or other investment, individually, is in excess of $100,000; or
(v) Contract, other than as set forth above and other than Artist Contracts, that is material to the UCI Businesses, taken as a whole, including without limitation Production/Label Contracts and Music Publishing Contracts. Each Contract to which any Acquired Company is a party or to any which it is otherwise bound (collectively, including without limitation the Material Contract Contracts and Acquisition Documents, the “Company Contracts”) constitutes in all material respects a legal, valid and binding agreement, enforceable against the other parties thereto in accordance with its terms (except as enforceability may be limited by bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and limitations on the remedy of specific performance). Each Acquired Company has exercised any termination rights performed in all material respects the terms, covenants and conditions on its part contained in all Company Contracts (including without limitation all Artist Contracts, Production/Label Contracts and Music Publishing Contracts) which are required to be performed on or indicated prior to Seller either orally the Closing Date. No Acquired Company is in default under, or in writing such party’s intent to terminate such Material Contractviolation or breach of, in each case other than in any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor material respect, any of its Subsidiaries the Company Contracts. No Acquired Company has received (or given) any written notice that it (or any other party thereto) is in material default under or in material violation or breach of any Company Contract, or that any party thereto intends to or has claimed a right to cancel, rescind or claim a breach of or default under any Material Contract andprovision thereof. Without limitation of the foregoing, to the Knowledge of Sellerall royalties, no other party advances, obligations and contractual benefits due to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other third party pursuant to such Material ContractContracts have been paid to all third parties due the same, nor has Seller including, without limitation, all recording artists, producers, musicians, songwriters, composers, music publishers, income participants and other Persons to which any Acquired Company is required to pay royalties pursuant to Artist Contracts, Production/Label Contracts, Music Publishing Contracts, mechanical licenses or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectother Contracts.
Appears in 1 contract
Contracts. (a) Section 4.12(a4.16(a) of the Seller Parent Disclosure Letter contains Schedule sets forth a list (ortrue and complete list, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”)::
(i) any each Contract to which a Vandalia Zero Entity is a party that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or restricts in any one-year period over its remaining termmaterial respect the ability of the Vandalia Zero Entities, taken as a whole, to engage in or compete in any business or with any Person in any geographical area;
(ii) each Contract creating, guaranteeing or securing outstanding Indebtedness of any Vandalia Zero Entity in excess of $50,000,000 (other than purchase orders entered into Indebtedness in the ordinary course of business consistent with past practice;
(ii) or between any Contract entered into with (x) an AffiliateVandalia Zero Entities, officer or director of Seller on the one hand, and Parent or any Subsidiary of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred EntityParent);
(iii) each Contract to which any Contract that restricts the Business from competing Vandalia Zero Entity is a party with respect to any Person partnerships, joint ventures or engaging in any line of business or activity in any geographic region in which the Business operates, similar arrangements with third parties (other than Parent or any such restrictions of its Subsidiaries), in each case that are not and would not reasonably be expected to be material to the Business, Vandalia Zero Entities taken as a whole;
(iv) each Contract to which any Contract entered into Vandalia Zero Entity is a party for (A) the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person (other than Parent or any of its Subsidiaries) with a total consideration of more than $10,000,000 in the customers aggregate during any calendar year after the date of this Agreement, or suppliers (B) the disposition (except in the ordinary course of business or with Parent or any of its Subsidiaries) after the date of this Agreement, directly or indirectly, of assets of the Business listed on Section 4.17 and 4.18 Vandalia Zero Entities with a total consideration of more than $10,000,000 in the aggregate during any calendar year or any capital stock or other securities (by merger, capital contribution or otherwise) of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such PersonVandalia Zero Entities;
(v) all Contracts pursuant any Contract to which Sellerany Vandalia Zero Entity is a party that is not entered into in the ordinary course of business and that requires any Vandalia Zero Entity to make any advance, its Subsidiaries loan or commitment therefor or provide any credit support for or any Transferred Entity receives capital contribution to, or grants a license to material Intellectual Property from or to other investment in, any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with Parent or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000its Subsidiaries) in the aggregate or annual payments excess of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);10,000,000; and
(vi) any joint venture, limited liability company each Contract that is a settlement or partnership Contract similar agreement with any third-party involving a sharing of profits, revenue Governmental Authority or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any other Person in respect of any Liability matter that is material to the business, assets or liabilities of such Person, including letters of credit and surety bonds, other than Contracts that any Vandalia Zero Entity pursuant to which a Vandalia Zero Entity will be terminated pursuant required to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures pay consideration in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of 10,000,000 after the date of this Agreement by the Agreement. Each such Contract described in clauses (i) through (vi) above, is referred to herein as a “Vandalia Zero Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessMaterial Contract”.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Each Vandalia Zero Business Material Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the any Vandalia Zero Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller that has expired or one of its Subsidiaries, enforceable against such Person been terminated in accordance with its terms andnot in violation of this Agreement) is valid, and binding on a Vandalia Zero Entity, as applicable, and to Seller’s Knowledgethe Knowledge of Parent, each other party thereto, and is in full force and effect subject and enforceable in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and accordance with its terms (subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Lawthe Bankruptcy and Equity Exception), except for such failures where the failure to be a legalvalid, valid binding, enforceable and binding obligation, enforceable, or in full force and effect thateffect, would not, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material ContractEach Vandalia Zero Entity, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of SellerParent, no any other party thereto, has performed all obligations required to any be performed by it under each Vandalia Zero Business Material Contract, except where such noncompliance would not, individually or in the aggregate, reasonably be expected to have a Parent Material Contract is in breach or default thereunder, and to Seller’s Knowledge no Adverse Effect. No event or condition has occurred and is continuing that constitutes or would constitute (that, with or without notice or lapse of time or both), would constitute a breach or default on pursuant to any Vandalia Zero Business Material Contract by any Vandalia Zero Entity or, to the part Knowledge of Seller or any of its SubsidiariesParent, or any other party to thereto, except for such Material Contractbreaches and defaults that would not, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(c) There is no setoff amount, counterclaim, or other circumstance that would diminish or adversely affect the availability of litigation or settlement recoveries from the United States or the Department of Energy in connection with the Standard Contract for Spent Fuel Disposal maintained by Comanche Peak Power Company LLC applicable to CPNPP except as would not be material to Parent and its Subsidiaries, taken as a whole. Comanche Peak Power Company LLC is the sole private party to the Standard Contract for Spent Fuel Disposal applicable to CPNPP no other Person has or could reasonably be expected to assert any rights, directly or indirectly, to settlement or litigation proceeds in connection with the Standard Contract for Spent Fuel Disposal at CPNPP except as would not be material to Parent and its Subsidiaries, taken as a whole.
(d) There is no setoff amount, counterclaim, or other circumstance that would diminish or adversely affect the availability of settlement recoveries from the United States or the Department of Energy in connection with the Spent Fuel Settlement Agreement applicable to damages incurred by Comanche Peak Power Company LLC except as would not be material to Parent and its Subsidiaries, taken as a whole. Comanche Peak Power Company LLC is the sole private party to the Spent Fuel Settlement Agreement and no other Person has or could reasonably be expected to assert any rights, directly or indirectly, to settlement or litigation proceeds in connection with the Spent Fuel Settlement Agreement applicable to damages incurred by Comanche Peak Power Company LLC except as would not be material to Parent and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Transaction Agreement (Vistra Corp.)
Contracts. (a) Section 4.12(a) 3.8 of the Seller Company Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of Schedule lists each of the following Transferred types of Contracts (other than Real Property Leases, Benefit Plans to which the Company or Employment Agreements) (the contracts listed on Section 4.12(a) any of the Seller Disclosure Letter together with contracts its Subsidiaries is a party as of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to or by which any of their respective properties or assets is bound as of the Closing Date are collectively referred to herein as the “Material Contracts”):date hereof:
(i) any each Contract that is would be required to be filed by its terms the Company as a “material contract” exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or is currently expected to result disclosed by the Company on a Current Report on Form 8-K that has not been filed or incorporated by reference in the payment Company SEC Documents;
(ii) each Contract to which the Company or receipt by any of its Subsidiaries is a party that (A) restricts the Business ability of the Company or any of its Subsidiaries (or that following the Offer Acceptance Time or the Closing will restrict the ability of Parent or any of its Subsidiaries) to compete in any line of business or with any Person, to conduct any line of business in any geographical area, to engage in any line of business or to solicit any client or customer, (B) restricts, in any material respect, the right of the Company or any of its Subsidiaries (or following the Offer Acceptance Time or the Closing will restrict the ability of Parent or any of its Subsidiaries) to sell, purchase, develop, supply, distribute or provide or receive support or service to, for, from, or otherwise engage in any business with, any Person, (C) requires the Company or any of its Subsidiaries to conduct any business on a “most favored nations” or other preferential basis with any third party or otherwise that grants any Person any type of special discount rights or (D) provides for “exclusivity” or any similar requirement in favor of any third party;
(iii) each Contract to which the Company or any of its Subsidiaries is a party that (A) is material to the Company or any of its Subsidiaries and (B) licenses to or from the Company or any of its Subsidiaries IP Rights where the total consideration exchanged under such Contract to date is $25,000 or more in value or the annual consideration exchanged under such Contract in any given year is $25,000 or more in value;
(iv) each Contract to which the Company or any of its Subsidiaries is a party that obligates the Company to make annual payments in excess of $200,000 over the remaining term of such Contract;
(v) each Contract to which the Company or any of its Subsidiaries is a party relating to indebtedness for borrowed money or any financial guaranty;
(vi) each Contract with or binding upon the Company or any of its Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act or to which any of the Company’s directors or officers is a party;
(vii) each joint venture, partnership, limited liability or other such similar agreement or arrangement to which the Company or any of its Subsidiaries is a party that relates to the formation, creation, operation, management or control of any joint venture, partnership or other such arrangement;
(viii) each Contract that grants any right of first refusal, right of first offer or similar right with respect to any assets, rights or properties of the Company or any of its Subsidiaries;
(ix) each Contract that provides for the acquisition or disposition of any assets (other than $1,000,000 acquisitions or dispositions of assets in the current fiscal year ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration (in one or a series of transactions) under such Contract of $200,000 or more;
(x) each Contract pursuant to which the Company or any oneof its Subsidiaries has continuing indemnification, guarantee, “earn-year period over its remaining term, out” or other similar contingent payment obligations other than purchase orders for indemnification and guarantee agreements entered into in the ordinary course of business consistent with past practice;
(iixi) each Contract expressly limiting or restricting the ability of the Company or any Contract of its Subsidiaries (A) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) to make loans to any Person or (C) to grant Encumbrances on the assets or property of the Company or any of its Subsidiaries;
(xii) each settlement agreement (A) pursuant to which the Company or any of its Subsidiaries has a current ongoing obligation, (B) which grants any third party rights to any material Company IP or imposes any restriction on the right of the Company and its Subsidiaries to use or register any IP Rights or (C) imposes any restrictions or obligations (other than the payment of money) on the businesses of the Company and its Subsidiaries or any of their Affiliates, other than releases immaterial in nature or amount entered into in the ordinary course of business with (x) an Affiliate, officer or director former employees of Seller the Company or any of its Subsidiaries or independent contractors in connection with the routine cessation of such employee’s or independent contractor’s employment;
(xiii) each Lease Agreement;
(xiv) each Contract with any Transferred Entity Governmental Body;
(xv) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries in a similar manner (yexcept for non-disclosure agreements entered into in the ordinary course of business);
(xvi) any entity controlled by each Contract (A) that grants an officer Encumbrance on the assets or director properties of Seller the Company or any of its Subsidiaries or (B) relating to any advance, loan, capital contribution or other extension of credit (other than trade credits and accounts receivable in the ordinary course of business consistent with past practice) made by the Company or any Transferred Entityof its Subsidiaries;
(iiixvii) each Contract relating to any interest rate, derivatives, swaps, options or other hedging transaction;
(xviii) each Contract that restricts obligates the Business from competing with Company or any Person of its Subsidiaries to make any capital commitment (including development or engaging construction of, or additions or expansions to, or renovations of, any property), loan or expenditure, individually or in any line the aggregate, in an amount in excess of business $200,000;
(xix) each Contract that requires a consent to or activity in any geographic region in which the Business operates, other than any such restrictions otherwise contains a provision relating to a “change of control,” or that are not and would not or would reasonably be expected to be material to prevent, delay or impair the Business, taken as a wholeconsummation of the transactions contemplated by this Agreement;
(ivxx) any employment Contract entered into with the customers (including agreements that contain non-competition, non-solicitation or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(vconfidentiality covenants) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party either (A) on general commercial terms and that continues applicable to be widely available on such commercial terms), any employee having a title of Vice President or above or (B) that is not distributed provides for severance with or incorporated in respect to any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or employee with an annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures base salary in excess of $1,000,000150,000;
(ixxxi) any Company Plan, any of the benefits of which will be increased materially, or the vesting of benefits of which will be accelerated, by the consummation of the transactions contemplated hereby or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xxii) each Contract between the Company or its Subsidiaries and any customer of either the Company or its Subsidiaries whose aggregate purchases of goods from the Company and its Subsidiaries during the fiscal year ended March 31, 2015 exceeded $200,000; and
(xxiii) any Contract providing for not entered into in the grant ordinary course of business between the Company or any of its Subsidiaries, on the one hand, and any Affiliate thereof (other than any Subsidiary of the Company). Each contract, arrangement, commitment or understanding of the type described in Section 3.8, whether or not set forth in Section 3.8 of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except Material Contracts that have expired or terminated by their terms, all of the Material Contracts are valid and binding on the Company or any third-Subsidiary of the Company, as the case may be, and, to the knowledge of the Company, each other party thereto, as applicable, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable Law affecting creditors’ rights generally and by general principles of equity. Neither the Company nor its Subsidiaries has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default under the provisions of any right of first refusal or other similar rights Material Contract. There are no disputes pending or, to purchase any of the Business’ assetsCompany’s knowledge, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations threatened as of the date of this Agreement by with respect to any Material Contracts and neither the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or Company nor any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains has received any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As notice of the date hereof, none intention of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised to amend, terminate for default, convenience or otherwise, not renew, or reduce any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default volumes under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of to the Company’s knowledge, is any such breachparty threatening to do so. The Company has Made Available to Parent true and complete copies of all Material Contracts, default, event or condition, except, in each case, for including any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectamendments thereto.
Appears in 1 contract
Contracts. (a) Section 4.12(a) 4.10 of the Seller Company Disclosure Letter contains Schedule sets forth a complete and correct list (orexcept for this Agreement), as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement, of each Contract, arrangement, commitment or understanding to which any of the following Transferred Contracts (other than Real Property Leases, Benefit Plans Acquired Companies is a party or Employment Agreements) (the contracts listed on Section 4.12(a) to which any asset or property of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):any Acquired Company is bound:
(i) any Contract that is required by its terms a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which (A) the Acquired Companies collectively received revenues for the 2021 fiscal year in excess of $2,000,000 or is currently (B) the Acquired Companies are collectively reasonably expected to result receive revenues in excess of such $2,000,000 in the payment 2022 fiscal year;
(iii) evidencing a commitment or receipt by requirement of the Business Acquired Companies (collectively) to make any capital expenditure (or receive a loan from a third Person in connection therewith) in excess of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into (except with respect to equipment lease financing in the ordinary course of business consistent with past practice);
(iiiv) that is a non-competition or non-solicitation Contract or any other Contract limiting, restricting or prohibiting, or purporting to limit, restrict or prohibit the manner or ability of any Acquired Company to compete or engage in any line or type of business or to engage in any line or type of business or compete with any Person in any geographic area, other than customer agreements entered into with (x) an Affiliatein the ordinary course of business, officer or director of Seller so long as such customer agreements do not purport to and would not bind Parent or any of its Subsidiaries or Affiliates (other than the Company and its Subsidiaries) following the consummation of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitythe Transactions;
(iiiv) relating to or evidencing Indebtedness (whether outstanding or as may be incurred) of any Contract that restricts of the Business from competing with Acquired Companies or any Person or engaging guarantee of Indebtedness by any of the Acquired Companies in any line excess of business or activity in any geographic region in which the Business operates$2,000,000, other than any such restrictions that are not Contract solely between or among the Company and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)wholly owned Subsidiaries;
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business relating to or in evidencing Indebtedness (whether outstanding or as may be incurred) of any Person, or guarantee by the Business Third Party to any of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures Acquired Companies in excess of $1,000,000;
(vii) other than with respect to any Entity that is wholly owned by the Company or any Subsidiary of the Company, that is a partnership, joint venture, alliance, shareholder, or similar Contract (including but not limited to Contracts relating to the formation, creation, operation, management or control of the same, and Contracts pursuant to which an Acquired Company has an obligation (contingent or otherwise) to make an investment in or extension of credit to any Person);
(viii) that is an agency, sales, marketing, commission, distribution, international or domestic sales representative or similar Contract;
(ix) any Contract providing for the grant to any third-party other than in respect of any right of first refusal or other similar rights to purchase Indebtedness and Taxes, that creates future payment obligations by any of the Business’ assets, properties or businessesAcquired Companies (including settlement agreements) outside the ordinary course of business and in excess of $3,000,000;
(x) under which any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 Acquired Company has granted any Person registration rights (including demand and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personpiggy-back registration rights);
(xi) that obligates any Contract providing for on-going indemnification obligations as Acquired Company to conduct any business on an exclusive basis with any third Person, or upon consummation of the date of this Agreement by Offer or the Business other than in respect of the performance Merger, will or purports to obligate Parent or any of its obligations under Contracts or other arrangements Affiliates to which it is a party for goods or services furnished by or to it, except for conduct business with any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000third Person on an exclusive basis;
(xii) that is a Government Contract and involves payments to the Acquired Companies (or any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 them) in excess of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements$3,000,000 per year;
(xiii) any Contract which involves that relates to the sale, transfer acquisition or acquisition disposition of any Person, business to or operations or assets constituting a business (whether by any third party that was merger, sale of stock, sale of assets, consolidation or otherwise) entered into since May 21within the past five (5) years (including any such Contract under which contemplated transactions were consummated but under which one or more of the parties thereto has executory indemnification, 2015 earn-out or other liabilities);
(xiv) that is a Contract under which an Intellectual Property Asset that is material to the conduct of the Acquired Companies’ businesses as currently conducted is licensed, whether an Acquired Company is a licensor or licensee, exclusive of Contracts for the license to an Acquired Company of any software, hardware, or information technology systems that are generally commercially available (e.g., so-called “off-the-shelf software and technology”);
(xv) that is a hedging, derivative or similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices);
(xvi) addressing the employment of any individual with any Acquired Company with base compensation or payments in excess of $250,000 per annum that is not terminable upon notice of thirty (30) days or less;
(xvii) providing for the retention, engagement or termination of any temporary agency employee, individual consultant or other individual independent contractor of any Acquired Companies, in each case that provides for compensation in excess of $250,000 per annum;
(xviii) that is a labor, collective bargaining, works council or similar agreement;
(xix) that provides for a loan or advance of any amount in excess of $10,000 to any employee of any of the Acquired Companies or any temporary agency employee, consultant or other independent contractor of the Acquired Companies, in each case, other than in the ordinary course of business consistent with past practice; or
(xx) that is not covered by the foregoing clauses of this Section 4.10(a) and that contains is material to the business of the Acquired Companies, taken as a whole, and provides for termination, acceleration of payment or any other material continuing rights or obligations upon the occurrence of Seller a change of control in the Company or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) Each Contract, arrangement, commitment or understanding of the Seller Disclosure Letter sets forth type described and required to be disclosed in Section 4.10(a) above (together with all amendment, supplements and modifications in each case thereto) is referred to herein as a “Material Contract.” A complete and correct listcopy of each Material Contract has been made available to Parent. Except Material Contracts that have expired by their terms or are terminated in accordance with their terms in compliance with Section 6.1, all of the Material Contracts are valid and binding on the Acquired Companies, as the case may be, and, to the Knowledge of the Company, each other party thereto, as applicable, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable Law affecting creditors’ rights generally and by general principles of equity. No Acquired Company is in material breach of or default under, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default under, or result in the termination of, or acceleration under, the provisions of any Material Contract, and as of the date hereof, no Acquired Company has received written notice of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms foregoing. As of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As , to the Knowledge of the Company, no other party to a Material Contract is in material breach of or default under, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default under, or result in the termination of, or acceleration under, the provisions of any Material Contract, and as of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract no Acquired Company has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any written notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in of the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectforegoing.
Appears in 1 contract
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to Schedule 4.15(a) sets forth each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described Contract in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations effect as of the date of this Agreement by the Business other than in respect to which any of the performance of its obligations under Contracts or other arrangements to which it Transferred Companies is a party for or by which any of the Transferred Companies would be bound following Closing and (i) purports to limit any Transferred Company (or Buyer or its Affiliates following the Closing) from engaging in the wireless communications services business in the Territory or any other business in any geographic area or competing in any manner with any Person; (ii) is reasonably likely to involve future payments, performance or services or delivery of goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business materials to or by any third party of the Transferred Companies of any amount or value reasonably expected to exceed two million dollars ($2,000,000) in any future twelve (12) month period or remaining term thereof if less than 12 months, or aggregate amount or value reasonably expected to exceed four million dollars ($4,000,000) over the remaining term thereof, other than Contracts that was entered into since May 21can be terminated on less than ninety (90) days’ notice without material monetary penalty; (iii) involves any acquisition or disposition of any business or substantially all of the stock or assets of any other Person; (iv) is a partnership or joint venture agreement or similar Contract; (v) pursuant to which any Transferred Company (or Buyer or its Affiliates following Closing) would be required to purchase or sell, 2015 and that as applicable, in a single transaction or series of transactions, (A) any wireless spectrum, (B) any equity interests of any Person or (C) any line of business; or (vi) contains any material continuing obligations “most favored nation” provision, right of Seller first refusal, right of first offer or other similar provision that purports to bind the Transferred Company (any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Businessforegoing Contracts described in this Section 4.15(a), a “Material Contract”).
(b) Section 4.12(b) of the Each Seller Disclosure Letter sets forth a has made available to Buyer complete and correct list, accurate copies of each Material Contract as in effect as of the date hereof, of each this Agreement. There are no oral Material Contracts the material terms and conditions of which have not been summarized on Seller Disclosure Schedule 4.15(a). Each Material Contract pursuant to which Seller or any of its Subsidiaries (other than a is valid and binding on the applicable Transferred Entity) Company that is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection withthereto, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofcase may be, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledgethe Knowledge of Sellers, each other party thereto, and is in full force and effect subject effect, subject, in all cases each case, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or other Laws affecting creditors’ rights generally and subject to general principles equity principles. Except as set forth on Seller Disclosure Schedule 4.15(b), there is no material default (or allegation of equityany material default) under any such Material Contract by such Transferred Company, regardless or, to the Knowledge of whether considered in a proceeding in equity or at LawSellers, except for such failures to be a legalany other party thereto, valid and binding obligation, enforceable, or in full force and effect no event has occurred that, individually with the lapse of time or the giving of notice or both, would constitute a material default thereunder by such Transferred Company, or, to the Knowledge of Sellers, any other party thereto or result in the aggregate, have not had and an early termination thereof or would not reasonably be expected to have cause or permit the acceleration or other changes of any material right or obligation or the loss of any material benefit thereunder. Except as set forth on Seller Disclosure Schedule 4.15(b), none of the Transferred Companies has provided or received any written notice of any intention to cancel, terminate or not renew any Material Contract.
(c) Except as set forth on Seller Disclosure Schedule 4.15(c), the only Affiliate Agreements to which any Transferred Company is or, as of the Closing, will be a Material Adverse Effectparty or to which its assets or business is or, as of the Closing will be, subject are the Ancillary Documents, the Post- Closing Contracts, and the Post-Signing Affiliate Arrangements. Each Seller has made available to Purchaser a complete Buyer true and correct copy accurate copies of each written Material ContractAffiliate Agreement that is in effect as of the date of this Agreement. Each of the Post-Closing Contracts constitutes, and when executed and delivered each of the Post-Signing Affiliate Arrangements will constitute, a valid and legally binding obligation of each Seller or its Affiliate and Transferred Company party thereto, enforceable against such Seller or Affiliate, as applicable, and Transferred Company in accordance with their respective terms, subject, in each case, as amendedto bankruptcy, supplemented insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination affecting creditors’ rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectgeneral equity principles.
Appears in 1 contract
Samples: Stock Purchase Agreement (Liberty Latin America Ltd.)
Contracts. (a) Section 4.12(a4.9(a) of the Seller Company Disclosure Letter contains identifies each Company Contract that constitutes a list (or, Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each Agreement Date. Each of the following Transferred Company Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior shall be deemed to the Closing Date are collectively referred to herein as the constitute a “Material Contracts”):Contract” for purposes of this Agreement:
(i) any Company Contract that is required requires by its terms or is currently reasonably likely to require the payment or delivery of cash or other consideration by or to the Company in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2022 or in any fiscal year thereafter, excluding commercially available off-the-shelf software licenses;
(ii) any Company Contract (other than any Company Stock Awards) pursuant to which the Company has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment or receipt by the Business Company of more than $1,000,000 250,000 in the current aggregate in the fiscal year ending December 31, 2022 or in any one-fiscal year period over thereafter, in either milestone payments or royalties or other amounts calculated based upon (A) the achievement of regulatory or commercial milestones or (B) the receipt of revenue or income based on product sales;
(iii) any Company Contract (A) granting any covenant not to sue or limiting the freedom or right of the Company, in any material respect, to engage in any line of business, to make use of or enforce its remaining term, rights under any material Company IP (other than purchase orders pursuant to any Outbound License) or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or (C) containing exclusivity obligations or restrictions or otherwise limiting the freedom or right of the Company to sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person (which, for clarity, excludes any field-of-use limitations pursuant to the terms of any inbound license of Intellectual Property entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholebusiness);
(iv) any Company Contract entered into with the customers constituting a joint venture, partnership, profit sharing or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personsimilar arrangement;
(v) all any Company Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Shares, or to the Knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Company Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”Company Stock Awards);
(vi) any joint ventureCompany Contract entered into since January 1, limited liability company 2020 that relates to the acquisition or partnership Contract with disposition of any thirdEntity or any line of business or division of any Entity, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) but excluding any transfer agreements, services agreements, clinical trial agreements and non-party involving a sharing exclusive licenses granted in the ordinary course of profits, revenue or expensesbusiness;
(vii) any Company Contract evidencing an outstanding loan, advance or investment by the Business to or in with any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)Governmental Body;
(viii) any Company Contract that is a settlement, conciliation or similar agreement (A) in respect of the Company Product or (B) with or approved by any Governmental Body, in the case of each clauses (A) and (B), pursuant to make capital expenditures in excess of $1,000,000which (1) the Company will be required after the Agreement Date to pay any monetary obligations or (2) that contains material obligations or limitations on the Company’s conduct;
(ix) any Company Contract providing for relating to Indebtedness in excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset) of the grant Company or subjecting to any third-party of Encumbrance (other than Permitted Encumbrances) any right of first refusal or other similar rights to purchase any asset or property of the Business’ assets, properties or businessesCompany;
(x) any Contract entered into with the customers hedging, swap, derivative or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personsimilar Company Contract;
(xi) any Company Contract providing for on-going indemnification obligations as the lease or sublease of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000material real property;
(xii) any Contracts Company Contract that provides for indemnification or guarantee of the obligations of any other Person that would be material to the Company taken as a whole (excluding indemnities contained in agreements for the purchase, sale or license of products, materials or services entered into with in the customers or suppliers ordinary course of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsbusiness);
(xiii) any Company Contract which involves that prohibits the salepayment of dividends or distributions in respect of the capital stock of the Company, transfer the pledging of the capital stock or acquisition other equity interests of the Company or prohibits the issuance of any business to or guaranty by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; andthe Company;
(xiv) any Company Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services relating to the BusinessCompany Product containing terms addressing or relating to (A) clinical drug development, clinical pilot programs, clinical trials or other clinical testing programs (other than clinical trial agreements entered into in the ordinary course of business), including any material collaboration, joint development or other similar agreement, (B) the supply, manufacturing, distribution, commercialization, purchase or sale of the Company Product (including any sole source supply, co-promotion, sales representative, distribution, wholesaler, reseller or other similar agreement) or (C) the pricing or reimbursement terms for the Company Product, in the case of each of clauses (A), (B) and (C), that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company in an amount having an expected value in excess of $250,000;
(xv) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
(b) Section 4.12(b) As of the Seller Disclosure Letter sets forth a Agreement Date, the Company has either delivered or made available to Parent or Parent’s Representatives an accurate and complete and correct list, as of the date hereof, copy of each Material Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms has publicly made available an unredacted copy of such Material Contracts after Contract in the date hereofElectronic Data Gathering, Analysis and Retrieval (XXXXX) database of the SEC. Neither the Company nor, to the Knowledge of the Company, the other party is in material breach of or material default under any Material Contract and, neither the Company nor, to the Knowledge of the Company, the other party has taken or failed to take any action that, with or without notice, lapse of time or both, would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Company and, to the Knowledge of the Company, the other party, a valid agreement, binding, and in full force and effect. To the Knowledge of the Company, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in by the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term Company in accordance with its terms.
(e) Neither Seller nor , subject to the Bankruptcy and Equity Exceptions. Since January 1, 2020, through the Agreement Date, the Company has not received any of its Subsidiaries is in written notice regarding any material violation or breach or default under any Material Contract and, to the Knowledge of Seller, no other party to that has not since been cured. The Company has not waived in writing any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or rights under any of its Subsidiaries, or any other party to such Material Contract, nor has Seller the waiver of which would have or any of its Subsidiaries received any notice of any such breachbe reasonably expected to have, default, event or condition, except, in each case, for any such breach, default, event or condition that either individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a) Schedule 5.6 of the Seller Disclosure Letter contains Schedules lists all material Contracts to which PDI is a list (or, party as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date (but excluding the Leases, which are collectively referred to herein as covered by Section 5.15) (the “Material Contracts”):
), including (i) any other lease, sublease or similar Contract that with any Person pursuant to which PDI is required a sublessor of, or makes available for use to any Person any portion of any premises otherwise occupied by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
PDI; (ii) any Contract entered into with (x) an Affiliatejoint venture, officer partnership or director other Contracts involving the sharing of Seller profits or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
losses; (iii) any Contract that restricts the Business from competing with creating or granting any Person or engaging in any line of business or activity in any geographic region in which the Business operates, Encumbrance (other than Permitted Encumbrances) upon any such restrictions that are not and would not reasonably be expected to be material to of the Business, taken as a whole;
Acquired Assets; (iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to under which the Business PDI has granted or received exclusive or non-exclusive rights to such Person;
or another Person processes, produces or manufactures, or will process, produce or manufacture, Products; (v) all Contracts pursuant to which Sellerany Contract with a customer, its Subsidiaries supplier or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated distributor involving amounts in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments excess of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
100,000; (vi) any joint venturecurrently effective Contract, limited liability company or partnership any expired or terminated Contract which has surviving provisions providing for indemnification of any Person by PDI with any third-party involving a sharing of profits, revenue or expenses;
respect to Liabilities relating to the Business; and (vii) any other Contract evidencing having an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures aggregate value over its remaining term in excess of $1,000,000;
(ix) 100,000. Schedule 5.6 excludes any Contract providing for that involves or is reasonably expected to involve the grant to any third-party payment of any right consideration having an aggregate value of first refusal or other similar rights to purchase any of the Business’ assetsless than $100,000, properties or businesses;
(x) any but only in those cases where such Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) PDI has made available to Purchaser copies of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract that is also an Assumed Contract, which are accurate and complete in all material respects, together with all amendments and supplements thereto. Each Material Contract that is also an Assumed Contract constitutes a legal, valid and binding obligation agreement of Seller or one of its SubsidiariesPDI. PDI is not in violation of, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceablebreach of, or in full force and effect thatdefault under, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract andnor, to the Knowledge of SellerSellers, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no has there occurred an event or condition has occurred and is continuing that constitutes or would constitute which (with or without notice or lapse of time or both)) would constitute a violation of, a breach of, or default on the part of Seller or under, any of its Subsidiaries, or any other party to such Material Contract that is also an Assumed Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectby PDI.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Contracts. (a) Section 4.12(a) 7.12 of the Seller Disclosure Letter Schedule contains a true and complete list (or, as applicable, contains a cross-reference to another Section and description of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each all of the following Transferred Contracts to which Seller is a party or by which any of Seller’s respective properties or assets are bound (other than Real Property Leases, Benefit Plans or Employment Agreementswhich such Section 7.12 is organized to correspond to the respective subsections below) (the contracts each Contract listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior 7.12 or required to the Closing Date are collectively be listed thereon is referred to herein as the a “Material ContractsContract”):
(i) Each Contract with (A) a Material Customer, (B) any Contract that is required by its terms other customer involving payments in excess of $50,000 or is currently expected to result in with a remaining term of greater than one year from the payment date hereof or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice(C) a Material Supplier;
(ii) any Each Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entityrelating to Indebtedness;
(iii) any Each Contract that restricts for the Business from competing with acquisition or disposition of any Person or engaging in any line of business unit thereof or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholeassets thereof;
(iv) any Each joint venture Contract, partnership agreement, limited liability company agreement or similar Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Persona third party;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated Each Contract requiring capital expenditures after the date hereof in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments an amount in excess of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Each Contract containing covenants limiting the freedom of Seller to compete with any third-party involving Person in a sharing product line or line of profits, revenue business or expensesoperate in any geographic location or solicit any Person;
(vii) any Each Contract evidencing an outstanding loan, advance or investment by the Business pursuant to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bondswhich Seller licenses Intellectual Property from a third party, other than Contracts click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that will be terminated pursuant are commercially available on reasonable terms to the public generally with one-time or annual license, maintenance, support and in accordance with Section 6.07(b)other fees less than $25,000 per year;
(viii) Each Contract with any Contract to make capital expenditures in excess Equityholder or any Affiliate of $1,000,000Seller or any Equityholder or any manager, director or officer of Seller or any such Affiliate;
(ix) Each Contract under which Seller is lessee, sublessee, lessor or sublessor of, or holds or operates, any Contract providing for real property, including all Leases and Licenses all other Contracts with respect to the grant to any third-party of any right of first refusal or other similar rights to purchase any of Leased Real Property and the Business’ assets, properties or businessesLicensed Real Property;
(x) Each Contract for the purchase or sale of any real property;
(xi) Each Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant a “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000exclusive dealing arrangement, rebate, volume commitment or take-or-pay arrangement or constituting a requirements Contract;
(xii) any Contracts entered into Each Contract with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsa Governmental Authority;
(xiii) Each settlement agreement in connection with any Contract litigation, claim or proceeding having continuing effect, none of which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains imposes any material continuing obligations obligation on Seller;
(xiv) Each Contract with any employee of Seller or Seller;
(xv) Each Contract with any independent contractor requiring the payment of its Subsidiariesmore than $50,000 over any 12-month period following the Closing; and
(xivxvi) any Each Contract with any employee leasing to which both Seller and Truline are a party or staffing company by under which such employee leasing or staffing company’s employees or contractors provide services to the Businessboth Seller and Truline have rights and/or obligations.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct listAll Material Contracts to be transferred, as of the date hereof, of each Contract pursuant to which Seller assigned or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related conveyed to the Overhead Company under this Agreement are valid, binding and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms the applicable Seller party thereto and, to Seller’s Knowledge, each the other party theretoparties thereto in accordance with their terms. Upon consummation of the Closing, and is provided all third party required consents identified on Section 7.3(a) of the Disclosure Schedule and all Landlord Consents and Estoppel Certificates are obtained, each Material Contract shall continue in full force and effect subject in all cases and shall not give rise to applicable bankruptcyany termination, insolvencyamendment, reorganizationacceleration, moratorium cancellation, penalty or other Laws affecting creditors’ rights generally and subject adverse consequence.
(c) Neither Seller nor, to general principles of equitySeller’s Knowledge, regardless of whether considered any other Person is in a proceeding breach in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceableany material respect of, or default, in full force and effect thatany material respect under, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written any Material Contract, and no event or action has occurred, is pending, or, to Seller’s Knowledge, is threatened, which, after the giving of notice, or the lapse of time, or otherwise, could constitute or result in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, a breach in any Subsidiary of material respect by Seller, or to Seller’s Knowledge, any other party Person, or a default in any material respect by Seller, or, to Seller’s Knowledge, any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contractother Person, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Purchase Agreement (Hub Group, Inc.)
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each Each of the following Transferred Contracts used in connection with the Business to which an EUE Company is a party or by which it or its properties is bound shall be referred to as a "Material Contract":
(1) any Contract or group of related Contracts that provides for the payment by an EUE Company of more than $50,000 in any consecutive 12-month period or more than $250,000 over the remaining life of such Contract other than Real Property Leases, Benefit Plans or Employment Agreementsa Contract that (A) (is terminable by any party thereto giving notice of termination to the contracts listed on Section 4.12(a) other party thereto not more than 30 days in advance of the Seller Disclosure Letter together with contracts of the type described in subclauses proposed termination date and (i)-(xiiiB) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or similar obligations;
(i2) any Contract that is required constitutes a purchase order or other Contract relating to the sale, purchase, lease or provision by its terms an EUE Company of goods or is currently expected to result services in the payment or receipt by the Business excess of more than $1,000,000 in the current fiscal year or 50,000 in any one12-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicemonth period;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii3) any Contract that restricts the Business from competing with grants any Person the right to sell products or engaging provide services within any geographical region other than a Contract that (A) is terminable by any party thereto giving notice of termination to the other party thereto not more than 30 days in advance of the proposed termination date and (B) even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or similar obligations;
(4) any Contract that purports to limit the freedom of any EUE Company to compete in any line of business or activity to conduct business in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholelocation;
(iv5) any Contract that is for the sale of goods or services by an EUE Company and which (A) was entered into by such EUE Company on terms known at the time the Contract was entered into not to be commercially reasonable or (B) was entered into with the customers or suppliers expectation that such EUE Company would incur a loss;
(6) any Contract that was entered into outside of the Ordinary Course of Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant EUE Companies;
(7) any Contract constituting a partnership, joint venture, strategic alliances or other similar arrangement;
(8) any Contract relating to which Indebtedness for Borrowed Money, any Contract creating a capital lease obligation, any Contract for the Business has granted exclusive rights sale of accounts receivable, any Contract constituting a guarantee of debt of any third Person or any Contract requiring an EUE Company to such maintain the financial position of any other Person;
(v9) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Contract in respect of Intellectual Property from Rights granted to or to any other Person (other than licenses and subscriptions by an EUE Company, excluding license agreements for Software obtained from a third party (A) on general off-the-shelf commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)software;
(vi10) any joint venture, limited liability company or partnership Contract with lease (including any third-party involving a sharing master lease covering multiple items of profits, revenue or expenses;
(viipersonal property) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect item or items of any Liability of personal property with a rental expense under such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
lease (viiiwhether for a single item or multiple items) any Contract to make capital expenditures in excess of $1,000,00050,000 in any consecutive 12-month period;
(ix11) any Contract providing for the grant to any third-party deferred payment of any right of first refusal purchase price including any "earn out" or other similar rights to purchase contingent fee arrangement;
(12) any Contract creating a Lien on any of the Business’ assets, properties EUE Assets that will not be fully discharged at or businessesprior to the Closing;
(x13) any Contract entered into between an EUE Company, on the one hand, and any EUE Shareholder or any Affiliate of an EUE Shareholder, on the other hand (including any Contract providing for (i) compensation, the acceleration of benefits or the loss of any rights in connection with the customers or suppliers consummation of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing transactions contemplated by this Agreement or terms in favor of such Person(ii) indemnification by an EUE Company);
(xi14) any Contract providing for on-going indemnification obligations as the purchase or sale of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000real property;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv15) any Contract with any employee leasing Governmental Authority;
(16) any Contract involving interest rate swaps, cap or staffing company by which such employee leasing collar agreements, commodity or staffing company’s employees financial future or contractors provide services option contracts or similar derivative or hedging Contracts; and
(17) any Contract otherwise material to the BusinessEUE Companies.
(b) Section 4.12(bTrue and complete copies (including all amendments) of each Material Contract have been provided to the Seller Disclosure Letter sets forth a complete and correct list, Buyer as part of the date hereofDue Diligence Documents if such Material Contract is in writing; if such Material Contract is oral, a summary of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after Contract has been included in the date hereof, Due Diligence Documents and such Material Contract has been identified as an oral Contract. Except as disclosed in Schedule 5.11: (i) each Material Contract is a the legal, valid and binding obligation of Seller or one of its Subsidiariesthe EUE Company which is a party thereto, and, any other Person party thereto, binding and enforceable against such EUE Companies and, any other Person party thereto, in accordance with its terms and, subject to Seller’s Knowledge, Creditors' Rights; (ii) each other party theretoMaterial Contract has not been terminated, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in neither the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledgerelevant EUE Companies nor, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract Person is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time time, or both), would constitute a breach or default on the part of Seller or any of its Subsidiariesdefault, or permit termination, modification in any other manner adverse to the applicable EUE Companies or acceleration thereunder; (iii) no party has asserted or has (except by operation of law) any right to offset, discount or otherwise abate any amount owing under xxx Xaterial Contract except as expressly set forth in such Material Contract, nor has Seller or ; (iv) there are no Material Waivers regarding any of its Subsidiaries received any notice of any such breach, default, event or condition, except, Material Contract that have not been disclosed in each case, writing to Buyer; and (v) the Material Contracts are sufficient for any such breach, default, event or condition that individually or the EUE Companies to be able to carry on their business in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectmanner intended.
Appears in 1 contract
Samples: Share Exchange Agreement (Composite Technology Corp)
Contracts. (a) Section 4.12(a4.10(a) of the Seller Company Disclosure Letter contains Schedule identifies each Company Contract that constitutes a list (or, Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each Agreement Date. Each of the following Transferred Company Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior shall be deemed to the Closing Date are collectively referred to herein as the constitute a “Material Contracts”):Contract” for purposes of this Agreement:
(i) any Company Contract that is required requires by its terms or is currently expected reasonably likely to result in require the payment or receipt delivery of cash or other consideration by or to the Business Company or any of more than its Subsidiaries in an amount having an expected value in excess of $1,000,000 350,000 in the current fiscal year ending December 31, 2021 or in any one-fiscal year period over thereafter and cannot be cancelled by the Company or any of its remaining term, Subsidiaries without penalty or further payment without more than ninety (90) days’ notice (other than purchase orders payments for services rendered to the date), excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements entered into in the ordinary course of business consistent with past practiceand non-exclusive outbound licenses entered into in the ordinary course of business;
(ii) any Company Contract entered into pursuant to which the Company or any of its Subsidiaries has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment by the Company or any of its Subsidiaries of more than $350,000 in the aggregate in the fiscal year ending December 31, 2021 or in any fiscal year thereafter, in either milestone payments or royalties, upon (A) the achievement of regulatory or commercial milestones or (B) the receipt of revenue or income based on product sales;
(iii) any Company Contract (A) limiting the freedom or right of the Company or any of its Subsidiaries, in any material respect, to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, (xB) an Affiliate, officer or director of Seller containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries or (C) containing exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of any Transferred Entity or (y) any entity controlled by an officer or director of Seller the Company or any of its Subsidiaries Subsidiaries: (1) to sell, distribute or of manufacture any Transferred Entity;
products or services or any technology or other assets to or for any other Person, or (iii2) to acquire or obtain any Contract that restricts the Business products or services from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholePerson;
(iv) any Company Contract entered into with the customers constituting a joint venture, partnership or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personsimilar profit-sharing arrangement;
(v) all Contracts any Company Contract constituting a Company Employee Agreement pursuant to which Seller, the Company or any of its Subsidiaries is or any Transferred Entity receives or grants a license may become obligated to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and make any severance, termination, or similar payment to any Company Associate or any spouse or heir of any Company Associate except for severance, termination or similar payments that continues to be widely available on such commercial terms)do not exceed $200,000 in cash per beneficiary or that is required by applicable Laws, (B) that is not distributed make any bonus, deferred compensation or similar payment (other than payments constituting base salary, bonuses or commissions paid in the ordinary course of business or in accordance with past performance or incorporated a Company Employee Agreement) in excess of $200,000 to any ProductCompany Associate, or (C) that is used for business infrastructure grant or accelerate the vesting of, or otherwise modify, any Company Stock Award other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) accelerated vesting provided in the aggregate Company Equity Plans or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)any other Company Employee Agreement;
(vi) any joint venture, limited liability company or partnership Company Contract with any third-party involving a sharing Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of profits5% or more of Shares, revenue or expensesto the Knowledge of the Company, any of their Affiliates (other than the Company and its Subsidiaries) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Company Contracts pursuant to Company Stock Awards);
(vii) any Contract evidencing an outstanding loanCompany Contract, advance that is currently in effect and under which there remain material executory obligations, that relates to the acquisition or investment by the Business to disposition of any material business, a material amount of stock or in any Person, or guarantee by the Business of the obligations assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) but excluding any transfer agreements, services agreements, clinical trial agreements and non-exclusive licenses granted in respect the ordinary course of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)business;
(viii) any Company Contract to make capital expenditures with any Governmental Body, other than any Company Contract, authorization, approval or program under which the Company or any of its Subsidiaries, directly or indirectly, (A) receives refunds, rebates, repayments, reimbursements or similar payments from or (B) makes any payments to, in excess of $1,000,000each case, any Governmental Body in connection with Medicare and any similar federal, state or local governmental programs;
(ix) any Company Contract providing for that is a settlement, conciliation or similar agreement with or approved by any Governmental Body: (A) pursuant to which the grant to any third-party of any right of first refusal Company or other similar rights to purchase any of its Subsidiaries will be required after the BusinessAgreement Date to pay any monetary obligations or (B) that contains material obligations or limitations on the Company’s or any of its Subsidiaries’ assets, properties or businessesconduct;
(x) any Company Contract entered into with the customers relating to Indebtedness in excess of $1,000,000 (whether incurred, assumed, guaranteed or suppliers secured by any asset) of the Business listed on Section 4.17 and 4.18 Company or any of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personits Subsidiaries;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts hedging, swap, derivative or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;similar Company Contract; and
(xii) any Contracts entered into with other Company Contract that is currently in effect and has been filed (or is required to be filed) by the customers or suppliers Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions Securities Act or that contain minimum purchase requirements;
(xiii) any Contract which involves would be required to be disclosed under Item 404 of Regulation S-K under the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessSecurities Act.
(b) Section 4.12(b) As of the Seller Disclosure Letter sets forth a Agreement Date, the Company has either delivered or made available to Parent or Parent’s Representatives an accurate and complete copy of each Material Contract or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and correct list, as Retrieval (XXXXX) database of the date hereofSEC. Neither the Company, any of each its Subsidiaries nor, to the Knowledge of the Company, the other party is in material breach of or material default under any Material Contract pursuant and, neither the Company, any of its Subsidiaries, nor, to which Seller the Knowledge of the Company, the other party has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Company or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use inand, but not exclusively, or that arises out of, but not exclusivelyto the Knowledge of the Company, the Business other party, a valid agreement, binding, and pursuant to which in full force and effect. To the Business obtains any material services, assets or benefits other than Knowledge of the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofCompany, each Material Contract is a legal, valid and binding obligation of Seller enforceable by the Company or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term Subsidiaries in accordance with its terms.
, subject to (ei) Neither Seller Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Since January 1, 2020 through the Agreement Date, neither the Company nor any of its Subsidiaries is in have received any written notice regarding any violation or breach or default under any Material Contract andthat has not since been cured, to except for violations or breaches that are immaterial. Neither the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, Company nor has Seller or any of its Subsidiaries received have waived in writing any notice of material rights under any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 1 contract
Contracts. (a) Section 4.12(a) 3.16 of the Seller Company Disclosure Letter contains a list (orSchedule sets forth, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists)Agreement Date, organized according to each subsection of this Section 4.12(a) which applies to such Contract, a correct and complete list of each effective Contract to which the Company or any of the following Transferred Contracts its Subsidiaries is a party and which constitutes:
(i) an employment Contract (other than Real offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with any such individuals who are terminable “at will” without Liability to the Company or any of its Subsidiaries and which letters and agreements do not contain post-termination severance provisions), a consulting Contract providing annual compensation in excess of $100,000 and which is not terminable on less than ninety (90) days written notice without Liability to the Company or any of its Subsidiaries, or any employee collective bargaining agreement or other contract with any labor union;
(ii) a Contract (other than trade debt incurred in the ordinary course of business) under which the Company or any of its Subsidiaries has borrowed any money from, or issued any note, bond, debenture or other evidence of Indebtedness to, any Person;
(iii) a non-competition, non-solicitation or exclusive dealing arrangement or any other agreement or obligation which purports to limit or restrict in any respect (A) the ability of the Company or any of its Subsidiaries to solicit customers or employees or (B) the manner in which, or the localities in which, all or any portion of the business and operations of the Company or its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, the business and operations of Parent and its Affiliates, is conducted;
(iv) a Contract that (A) involves future expenditures or projected receipts by the Company or any of its Subsidiaries of more than $250,000 in any one-year period or is otherwise material to the operation of the business of the Company or its Subsidiaries and (B) is terminable by the other party or parties upon a change in control of the Company;
(v) a Contract granting a Lien (other than Permitted Liens) upon any material property or asset of the Company or any of its Subsidiaries;
(vi) a lease, sublease or similar Contract with any Person under which the Company or any of its Subsidiaries is a lessor or sublessor of, or makes available for use to any Person (other than the Company or such Subsidiary), (A) any Leased Property Leasesor (B) any portion of any premises otherwise occupied by the Company or any of its Subsidiaries;
(vii) a lease or similar Contract with any Person under which (A) the Company or any of its Subsidiaries is lessee of, Benefit Plans or Employment holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person (other than any Contracts that individually do not involve the payment by or to the Company or any of its Subsidiaries of more than $100,000 in any twelve-month period and in the aggregate do not involve the payment by or to the Company or any of its Subsidiaries of more than $300,000 in any twelve-month period) or (B) the Company or any of its Subsidiaries is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by the Company or any of its Subsidiaries;
(viii) a Contract which is a joint venture or partnership agreement, or research or development collaboration or similar arrangement;
(ix) a Contract providing for the acquisition or disposition after the Agreement Date of any of the Company’s or any of its Subsidiaries’ material assets;
(x) any agreement that contains a “most favored nation” clause or other term providing preferential pricing to a third party;
(xi) a Contract granting a third party any license to any Company Intellectual Property, or pursuant to which the Company or any of its Subsidiaries have been granted by a third party any license to any Intellectual Property, or any other license, option or other Contract relating in whole or in part to the Company Intellectual Property or the Intellectual Property of any other Person (each, a “License Agreement” and collectively, the “License Agreements”), other than (A) agreements between the Company and its employees in the Company’s standard form thereof and (B) any generally available, non-customized, third party software licensed to the Company which does not require aggregate payments in any given year in excess of $40,000 in license, maintenance, royalty and/or other fees;
(xii) a Contract with a health maintenance organization or health benefit plan, health insurance plan, or other third party reimbursement or payment program administered or otherwise operated by any Person other than a Governmental Authority (excluding any employee benefit plans which the Company has put in place for the benefit of its employees); or
(xiii) any other Contract that (A) involves future expenditures or projected receipts by the Company or any of its Subsidiaries of more than $250,000 in any one-year period, (B) is not terminable on less than 180 days’ notice without Liability to the Company or any Subsidiary, or (C) is otherwise material to the operation of the business of the Company or any of its Subsidiaries (the contracts listed on Section 4.12(aContracts set forth in the foregoing clauses (i) of the Seller Disclosure Letter together with contracts of the type described in subclauses through (i)-(xiiixiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of Assuming the Seller Disclosure Letter sets forth a complete due authorization, execution and correct list, as of delivery by the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofparties thereto, each Material Contract is a legal, valid and binding obligation of Seller the Company or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Sellerthe Company, no of each of the other party parties thereto. True and complete copies of each Material Contract have been delivered to any such Parent. Each Material Contract is in breach or default thereunderfull force and effect, and none of the Company, any of its Subsidiaries nor, to Seller’s the Knowledge of the Company, any other party thereto, is in default or breach in any material respect under the terms of any such Material Contract. No Material Contract requires prepayments, additional payments or increased payments by the Company or any of its Subsidiaries as a result of consummation of the transactions contemplated by this Agreement. Except as set forth in Section 3.16(b) of the Company Disclosure Schedule, no event notice, waiver, consent or condition has occurred and approval is continuing that constitutes required (or the lack of which would constitute (with give rise to a right of termination, cancellation or without acceleration of, or entitle any party to accelerate, whether after the giving of notice or lapse of time or both), a breach any obligation under the Material Contracts) under or default on relating to any Material Contract in connection with the part execution, delivery and performance of Seller this Agreement or the consummation of the Merger or any of the other transactions contemplated hereby, and, immediately following the Effective Time, each Material Contract will continue to be in full force and effect, and valid, binding and enforceable in accordance with its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectterms.
Appears in 1 contract
Contracts. (a) Section 4.12(a) Except for this Agreement, Schedule 3.11 contains a complete and correct list, as of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement, of each contract described below in this Section 3.11(a) under which the Company or any Subsidiary of the following Transferred Contracts Company has any current or future rights, responsibilities, obligations or liabilities (other than Real Property Leasesin each case, Benefit Plans whether contingent or Employment Agreementsotherwise) (the contracts listed on Section 4.12(a) or to which any of their respective properties or assets is subject, in each case as of the Seller Disclosure Letter together with date of this Agreement (all contracts of the type described in subclauses (i)-(xiiithis Section 3.11(a) entered into after the date hereof and prior to the Closing Date are collectively being referred to herein as the “Material Contracts”):
(i) each contract that limits in any Contract material respect the freedom of the Company or any of its Subsidiaries to compete in any line of business or geographic region, or with any Person, including any contract that is required requires the Company and/or its Subsidiaries to work exclusively with any Person in any geographic region, or which by its terms would so limit the freedom of Purchaser and its Affiliates after the Closing, excluding, in any such case, any limitations or restrictions on the ability to solicit any individual or class of individuals of the counterparty to any such contract (and/or any of its Affiliates) for employment;
(ii) any partnership, joint venture, strategic alliance, collaboration, co-promotion or design project contract which is currently material to the Company and its Subsidiaries, taken as a whole;
(iii) each contract not otherwise described in any other subsection of this Section 3.11(a) that (A) is reasonably expected to involve future expenditures by the Company and/or any of its Subsidiaries of more than $5,000,000 in the one-year period following the date hereof and (B) cannot be terminated by the Company or such Subsidiary of the Company on less than ninety (90) days’ notice without material payment or penalty, other than ordinary course product purchase contracts;
(iv) each acquisition or divestiture contract or each material licensing agreement that contains representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the payment receipt or receipt by the Business making of more than future payments in excess of $1,000,000 5,000,000 in the current fiscal year twelve (12) month period following the date hereof;
(v) each contract relating to outstanding indebtedness of the Company or its Subsidiaries for borrowed money or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) in any one-year period over its remaining term, an amount in excess of $500,000 other than purchase orders (A) contracts solely among the Company and any wholly owned Subsidiary of the Company, and (B) financial guarantees entered into in the ordinary course of business consistent with past practicepractice not exceeding $500,000, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business in each case to the extent not drawn upon);
(iivi) each contract between the Company or any Contract entered into with Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (xother than a wholly owned Subsidiary of the Company) an Affiliate, officer of the Company or director any Subsidiary of Seller the Company or any of its Subsidiaries their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Transferred Entity or (y) any entity controlled by an officer or director of Seller contract pursuant to which the Company or any Subsidiary of its Subsidiaries the Company has an obligation to indemnify such officer, director, Affiliate or of family member, but not including any Transferred EntityBenefit Plans;
(iiivii) any Contract contract (excluding licenses for commercial off the shelf computer software that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in are generally available on nondiscriminatory pricing terms) under which the Business operatesCompany or any Subsidiary of the Company is granted any license, option or other than any such restrictions that are right or immunity (including a covenant not and would not reasonably be expected to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property of a third party, which contract is material to the BusinessCompany and its Subsidiaries, taken as a whole;
(ivviii) any Contract entered into with contract under which the customers Company or suppliers any Subsidiary of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business Company has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party any license, option or other right or immunity (A) on general commercial terms and that continues including a covenant not to be widely available on such commercial terms)sued or right to enforce or prosecute any patents) with respect to any Intellectual Property, (B) that which contract is not distributed with or incorporated in any Productmaterial to the Company and the Company’s Subsidiaries, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving taken as a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000whole;
(ix) any Contract providing for stockholders, investors rights, registration rights or similar agreement or arrangement relating to the grant to any third-party issuance, sale, repurchase or redemption of any right equity securities of first refusal the Company or other similar rights to purchase any of the Business’ assets, properties or businessesits Subsidiaries;
(x) any Contract entered into with contract requiring the customers Company or suppliers any Subsidiary of the Business listed on Section 4.17 and 4.18 Company to purchase a minimum quantity of goods relating to any product that (A) is reasonably expected to involve future expenditures by the Company or any of the Seller Disclosure Letter Company Subsidiaries of more than $1,500,000 in the one-year period following the date hereof and containing any requirement to grant “most favored nation” pricing (B) cannot be terminated by the Company or terms in favor such Subsidiary of such Personthe Company on less than ninety (90) days’ notice without material payment or penalty;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts material collective bargaining agreement or other arrangements to which it is a party for goods or services furnished by or to it, except for material contract with any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000labor union;
(xii) any Contracts entered into with contract involving the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements settlement of any product claim, action or service from such Personproceeding or threatened claim, that contain “take action or pay” provisions proceeding (or that contain minimum purchase requirementsseries of related, claims actions or proceedings) (A) which will involve payments after the date hereof, or involved payments, in excess of $1,000,000 or (B) with respect to which material conditions precedent to the settlement have not been satisfied;
(xiii) any Contract which involves the sale, transfer or acquisition of contract with respect to any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its SubsidiariesLeased Real Property; and
(xiv) any Contract contract not otherwise described in any other subsection of this Section 3.11(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities and Exchange Commission) with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services respect to the BusinessCompany and/or its Subsidiaries.
(b) Section 4.12(b) The Company has made available to Purchaser prior to the date of this Agreement, a true and complete copy of each Material Contract as in effect on the date of this Agreement. Neither the Company nor any Subsidiary of the Seller Disclosure Letter sets forth Company is in breach of or default under the terms of any Material Contract, and, to the Knowledge of the Company, there does not exist any event, change, effect, development, occurrence, circumstance, condition, matter or state of facts (including the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby) which (with or without notice, passage of time, or both) would constitute a complete and correct listbreach or default under any Material Contract, where such breach or default has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the Knowledge of the Company, as of the date hereof, of each no other party to any Material Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusivelyor is alleged to be in, breach of or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with default under the terms of any Material Contract where such breach or default has had, or would reasonably be expected to have, individually or in the aggregate, a Material Contracts after Adverse Effect. Except as has not had, or would not reasonably be expected to have, individually or in the date hereofaggregate, a Material Adverse Effect, each Material Contract is a legal, valid and binding obligation of Seller the Company or one the Subsidiary of its Subsidiaries, enforceable against such Person in accordance with its terms the Company which is party thereto and, to Seller’s Knowledgethe Knowledge of the Company, of each other party thereto, and is in full force and effect effect, except that (i) such enforcement may be subject in all cases to applicable bankruptcy, insolvency, examinership, reorganization, moratorium or other Laws affecting similar laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures equitable defenses and to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As discretion of the date hereof, none of Seller, court before which any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its termsproceeding therefor may be brought.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Purchase Agreement (Coach Inc)
Contracts. The Disclosure Schedule sets forth a list of the following SBB Contracts, other than Contracts for loans by SBB made in the ordinary course of business or for deposits accepted by SBB in the ordinary course of business:
(a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference A Contract which is to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans be performed in whole or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into part at or after the date hereof of this Agreement and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
which (i) cannot be canceled upon 30 days' notice or less and involves aggregate future payments by or to any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business SBB Party of more than $1,000,000 in 25,000; (ii) involves material non-monetary obligations to be performed later than one year from the current fiscal year date hereof; (iii) otherwise materially affects any SBB Party or in any one-year period over its remaining term, other than purchase orders such party's Business Condition; or (iv) was not entered into in the ordinary course of business consistent with past practicebusiness;
(b) A Contract pursuant to which any SBB Party (i) has incurred Indebtedness; or (ii) any Contract entered into with (x) an Affiliate, officer has made or director committed to make a loan in excess of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity$25,000;
(c) A Contract regarding advertising, brokerage, licensing, management, representative or agency relationships;
(d) A Contract with or concerning any labor or employee organization;
(e) A Contract for the Transfer of any properties, assets or rights of any SBB Party for consideration in excess of $25,000 or for the grant of any preferential right to purchase any of such assets, properties or rights, or which requires the consent of any third party to the Transfer of such assets, properties or rights;
(f) A Contract with any Affiliate of any SBB Party;
(g) A Contract involving an amount in excess of $25,000 or any material right of SBB (i) under which the benefits cannot be retained upon the consummation of the transactions contemplated by this Agreement without the written consent or approval of other parties, (ii) under which there will be a default as a result of the consummation of the transactions contemplated by this Agreement unless such other parties provide written consent or approval or (iii) which would require the making of any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operatespayment, other than payments as contemplated by this Agreement, to any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) employee of any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from SBB Party or to any other Person (other than licenses and subscriptions for Software obtained from as a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments result of less than fifty thousand dollars ($50,000) in the aggregate or annual payments consummation of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)the transactions contemplated herein;
(vih) any joint venture, limited liability company A Contract involving the lease of real or partnership Contract with any third-party involving a sharing of profits, revenue or expensespersonal property;
(viii) any A Contract evidencing an outstanding loanfor data processing, advance item processing or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)internet banking;
(viiij) A Contract for the offer or sale of securities or insurance products to customers of SBB or at SBB's facilities;
(k) A merchant or credit card Contract;
(l) A Contract with a Governmental Authority;
(m) A Contract providing any SBB Party the right or license to use or exploit the IP of any other Person other than shrink-wrap licenses; and/or
(n) A Contract requiring any SBB Party to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business25,000.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (National Mercantile Bancorp)
Contracts. (a) Section 4.12(a) For all purposes of the Seller Disclosure Letter contains and under this Agreement, a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such "Material Contract, of " means each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described Acquired Company, in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):each case, since January 1, 2011:
(i) any Contract that is would be required to be disclosed by its terms the Company on the MOPS or is currently expected to result in the payment annual reports;
(ii) other than at-will offer letters on the Company's standard form containing no severance provisions or receipt consulting Contracts which may be cancelled on less than ninety (90) days notice without penalty to the Company, any employment or independent contractor Contract (in each case, under which the Company has continuing obligations as of the date hereof) with any current or former executive officer, consultant, independent contractor, or employee of the Company or its Subsidiaries or member of the Company Board providing for an annual base compensation in excess of NT$2,000,000;
(iii) any Contract or plan (including any stock option plan, stock appreciation right plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the Business consummation of more the transactions contemplated hereby (including the Merger) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement (including the Merger);
(iv) any Contract containing any covenant, commitment or other obligation (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any Company Intellectual Property Rights, or to compete with any Person in any line of business, or (B) granting any exclusive rights;
(v) any Contract that is royalty-bearing providing for payment in excess of NT$1,500,000 annually;
(vi) any Contract (A) 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 other than $1,000,000 in the current fiscal year ordinary course of business or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any oneother Person or other business enterprise other than the Company's Subsidiaries;
(vii) the top five (5) Contracts (as measured by aggregate dollar amount contemplated under each Contract) in each of the following categories: (i) end-year user or customer contracts, (ii) value added reseller contracts, (iii) distributor contracts, (iv) supplier contracts, (v) OEM contracts, and (vi) development contracts;
(viii) any Contract (A) containing any financial penalty in excess of NT$1,500,000 for the failure by the Company or any of its Subsidiaries to comply with any support or maintenance obligation except for such Contracts on the Company's standard form of customer agreement or (B) containing any obligation to provide support or maintenance for the Company Products for any period over its remaining termin excess of twelve (12) months;
(ix) (A) any Contract to license any third party to manufacture or reproduce any Company Products or (B) the top five (5) Contracts to authorize any third party to sell, license or distribute any Company Products;
(x) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of NT$2,000,000, other than purchase orders entered into (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned Subsidiaries, in each case in the ordinary course of business consistent with past practice;
(iixi) any settlement Contract other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the ordinary course of business or (xB) an Affiliate, officer or director of Seller settlement agreements for cash only (which has been paid) and does not exceed NT$3,000,000 as to such settlement;
(xii) any other Contract that provides for payment obligations by the Company or any of its Subsidiaries of NT$3,000,000 or of more in any Transferred Entity or individual case and is not disclosed pursuant to clauses (yi) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitythrough (xi) above;
(iiixiii) any Contract that restricts with the Business from competing Governmental Authority;
(xiv) any lease of any real property; and
(xv) any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would be reasonably expected to have a Material Adverse Effect on any Person material product or engaging in any line service offerings of business the Company or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not otherwise reasonably be expected to be material to the BusinessCompany and its Subsidiaries, taken as a whole;, and is not disclosed pursuant to clauses (i) through (xiv) above.
(ivb) any Contract entered into with the customers or suppliers Section 5.15(b) of the Business listed on Section 4.17 and 4.18 of the Seller Company Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) contains an accurate and complete list of all Material Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as Agreement. As of the date hereofof this Agreement, accurate and complete copies of each Contract pursuant to which Seller or any of its Subsidiaries all Contracts that are Material Contracts (other than a Transferred Entityincluding all exhibits and schedules thereto) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)have been made available.
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiarieson each Acquired Company that is a party thereto, enforceable against such Person in accordance with its terms and, to Seller’s Knowledgethe knowledge of the Company, each other party thereto, and is in full force and effect subject effect, enforceable against such Acquired Company that is a party thereto in all cases to accordance with its terms, except that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other similar Laws affecting or relating to creditors’ ' rights generally and subject to general principles generally. None of equity, regardless of whether considered in a proceeding in equity the Acquired Companies has materially violated or at Law, except for such failures to be a legal, valid and binding obligation, enforceablematerially breached, or in full force and effect thatcommitted any material default under, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written any Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) to the date of this Agreement.
(d) As knowledge of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of SellerCompany, no other party to Person has materially violated or materially breached, or committed any such material default under, any Material Contract is in breach or default thereunderContract. To the knowledge of the Company, no event has occurred, and to Seller’s Knowledge no event circumstance or condition has occurred and is continuing exists, that constitutes or would constitute (with or without notice or lapse of time time) (A) results in a material violation or both), a material breach or default on the part of Seller or any of its Subsidiaries, or the provisions of any other party to such Material Contract, nor (B) gives any Person the right to declare a default or exercise any remedy under any Material Contract, (C) gives any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Material Contract, (D) gives any Person the right to accelerate the maturity or performance of any Material Contract, or (E) gives any Person the right to cancel, terminate or modify any Material Contract. Since January 1, 2011, none of the Acquired Companies has Seller or any of its Subsidiaries received any written notice of regarding any such breachactual or possible violation or breach of, defaultor default under, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 1 contract
Contracts. (a) Section 4.12(aSchedule 5.13(a) of the Seller Disclosure Letter Schedule contains a true, correct and complete list (or, as applicable, contains a cross-reference to another Section including the names of the Seller Disclosure Letter that lists)parties, organized according to each subsection of this Section 4.12(athe date, and all amendments, supplements or modifications thereto) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leasescollectively, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Business Contracts”):
(i) any Contract all Contracts related to the Business, the Purchased Assets or the Assumed Liabilities that is required provide for payment by its terms or is currently expected to result in the payment or receipt by the Business Seller of more than $1,000,000 25,000 in the current fiscal year or in any one-year twelve (12) month period over its remaining term, other than purchase orders entered into in immediately following the ordinary course of business consistent with past practicedate hereof;
(ii) any Contract entered into with all Contracts for the sale of goods or the performance of services by Seller having an actual or anticipated value to Seller of at least $25,000 in the twelve (x12) an Affiliatemonth period immediately following the date hereof, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entityincluding purchase orders;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholeall Lease Agreements;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personall Intellectual Property Contracts;
(v) all Contracts pursuant to which Sellerentered into by Seller that provide any exclusive license or exclusive distribution right of any kind, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or including, without limitation, with regard to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms)product, (B) that is not distributed with service, market, industry, field of use or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)geographic territory;
(vi) any joint venture, limited liability company or partnership Contract with any third-party all Contracts involving a sharing of profits, revenue losses, costs or expensesLiabilities by Seller with any other Person, including any joint venture agreement;
(vii) any Contract evidencing an outstanding loanall Contracts under which Seller has granted or received most favored customer pricing provisions, advance or investment by the Business to or in any Personrights of first refusal, rights of first negotiation, or guarantee similar rights with respect to any product, service or Intellectual Property Right that is now or hereafter owned by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)it;
(viii) all Contracts containing any Contract covenant limiting in any respect the right of Seller to make capital expenditures engage in excess any line of $1,000,000business, to compete with any Person or to solicit any Person for business, employment or other purposes;
(ix) all Contracts between Seller and any Contract providing other Person related to the Business under which Seller has agreed to, provided, or assumed any obligation to reimburse for the grant to or guaranty any third-third party of any right of first refusal obligation or other similar rights to purchase any of the Business’ assets, properties or businessesaction;
(x) all Contracts between Seller and Seller Parent or any Contract entered into with the customers or suppliers of other Affiliate relating to the Business listed on Section 4.17 (other than (A) Contracts relating to matters that are covered by the Transition Services Agreement or the Supply Agreement and 4.18 of the Seller Disclosure Letter and containing (B) any requirement to grant “most favored nation” pricing or terms in favor of such Personemployee benefit plans maintained by Seller);
(xi) any Contract providing for on-going indemnification obligations as all forms of the date of this Agreement by the Business other than in respect of the performance of its obligations under dealer, sales representative, distributor, reseller, or similar Contracts or other arrangements relating to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers all settlement agreements of the Business listed on Section 4.17 and 4.18 of the under which Seller Disclosure Letter that require the Business has any ongoing obligations, limitations or restrictions, receives any ongoing benefits or rights or grants any license or right to purchase its total requirements of any product current or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsprior Intellectual Property Rights;
(xiii) all Employee Contracts with Business Employees (excluding offer letters for “at-will” employment that are terminable at any Contract time, with or without notice, and with no Liability to Seller);
(xiv) all Contracts under which involves the saleSeller has delivered copies of or disclosed, transfer or acquisition of promised to deliver or disclose any business Source Code that constitutes a Purchased Asset to a third party, whether pursuant to an escrow arrangement or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiariesotherwise; and
(xivxv) any Contract all Contracts of the Business with any employee leasing Governmental Entity. Seller has delivered to Buyer or staffing company by which such employee leasing or staffing company’s employees or contractors provide services made available to Buyer a true, correct and complete copy of each written Business Contract listed on Schedule 5.13(a) of the BusinessDisclosure Schedule and a written summary setting forth in reasonable detail the material terms and conditions of each oral Business Contract listed on Schedule 5.13(a) of the Disclosure Schedule.
(b) Section 4.12(bEach Business Contract listed on Schedule 5.13(a) of the Seller Disclosure Letter sets forth a complete Schedule is valid, binding and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no the other party parties thereto in accordance with its terms and is in full force and effect, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors’ rights and subject to the rules of law governing specific performance, injunctive relief, or other equitable remedies. Seller has performed, or is now performing, the obligations of, and has not breached, violated or defaulted under, or received any written or, to the Knowledge of Seller, oral notice that it is in default under or in breach of, any of the terms or conditions of any such Material Contract is in breach or default thereunderBusiness Contract, and, to the Knowledge of Seller, each of the other parties thereto has performed all obligations required to be performed by it under, and to Seller’s Knowledge is not in default under, any such Business Contract and no event or condition has occurred and is continuing that constitutes or would constitute (that, with or without notice or lapse of time time, or both), would constitute such a breach breach, violation or default on by Seller or, to the part Knowledge of Seller, any other party thereto. There are presently no renegotiations of, or attempts to renegotiate under any Business Contract, and no Person has made any written demand to Seller or any of its Subsidiariesrepresentative thereof for such renegotiation. No Business Contract is currently being audited by any other party, and Seller has not received any written notice or other communication that any other party wishes to such Material audit Seller’s compliance with any Business Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lawson Products Inc/New/De/)
Contracts. (a) Section 4.12(a2.18(a) of the Seller Disclosure Letter Schedule (with paragraph ------------------------------------------ references corresponding to those set forth below) contains a true and complete list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts or other arrangements (other than Real Property Leasestrue and complete copies or, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) if none, reasonably complete and accurate written descriptions of the Seller Disclosure Letter which, together with contracts all amendments and supplements thereto and all waivers of the type described in subclauses (i)-(xiii) entered into after the date hereof and any terms thereof, have been delivered to Purchaser prior to the Closing Date are collectively execution of this Agreement) to which Seller is a party or by which any of the Assets is bound:
(A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to employment or the termination of employment of, any Employee, the name, position and rate of compensation of each Employee party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and any such Contracts referred to herein as the “Material Contracts”):
in clause (iA)) any Contract that is required by its terms or is currently expected involving an obligation of Seller to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or make payments in any one-year period over its remaining termyear, other than purchase orders entered into with respect to salary or incentive compensation payments in the ordinary course of business, to any Employee;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of Seller to engage in any business activity or compete with any Person in connection with the Business or prohibiting or limiting the ability of any Person to compete with Seller 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 licensors, licensees, distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom Seller deals in connection with the Business;
(v) all Contracts to which Seller is a party, or by which Seller is bound, that relate to Intellectual Property Assets;
(vi) to the extent relevant to the Business, the Assets or the Acquisition, all Contracts between or among Seller, on the one hand, and any officer, director, Affiliate of Associate of Seller or any Associate of any such officer, director or Affiliate, on the other hand;
(vii) to the extent relevant to the Business, the Assets or the Acquisition, all collective bargaining or similar labor Contracts;
(viii) to the extent relevant to the Business, the Assets or the Acquisition, all Contracts relating to Indebtedness of Seller;
(ix) all Contracts relating to (A) the future disposition or acquisition of any Assets, other than dispositions or acquisitions of Inventory in the ordinary course of business consistent with past practice;
, and (iiB) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts to the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material extent relevant to the Business, taken as a whole;
(iv) the Assets or the Acquisition, any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure merger or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businessesbusiness combination;
(x) any Contract entered into with the customers or suppliers all Contracts containing development obligations of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;that have not been completed; and
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by all other Contracts with respect to the Business other than in respect that (A) involve the payment or potential payment, pursuant to the terms of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished any such Contract, by or to it, except for any such agreement under which the aggregate remaining liability Seller of the Business for indemnification obligations thereunder does more than $5,000 annually and (B) cannot exceed, be terminated within thirty (30) days after giving notice of termination without resulting in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller cost or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services penalty to the BusinessSeller.
(b) Each Contract required to be disclosed in Section 4.12(b2.18(a) of the Seller ---------------------- Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and Schedule is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be constitutes a legal, valid ------------------- and binding obligationagreement, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
(e, of each party thereto; and except as disclosed in Section 2.18(b) Neither of the Disclosure Schedule, ------------------------------------------ neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract andnor, to the Knowledge of Seller, no any other party to such Contract is, or has received notice that it is, in violation or breach of or default under any such Material Contract is in breach (or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a would be in violation or breach of or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of under any such breach, default, event or condition, except, Contract) in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectrespect.
Appears in 1 contract
Contracts. (a) Section 4.12(a) As of the Seller Disclosure Letter contains a list (ordate hereof, as applicable, contains a cross-reference to another Section none of the Seller Disclosure Letter that lists), organized according Acquired Companies is a party to each subsection of this Section 4.12(a) which applies to such or is bound by any Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”)::
(i) any Contract that is required by its terms a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which any Acquired Company made or is currently expected to result in the payment or receipt by the Business received payments of more than an aggregate of $1,000,000 in during the current fiscal year ended December 31, 2019 or is committed to make or entitled to receive payments of more than an aggregate of $1,000,000 during the fiscal year ending December 31, 2020;
(iii) evidencing a commitment by an Acquired Company to make a future capital expenditure in excess of $1,000,000 that is not terminable by such Acquired Company upon notice of thirty (30) days or less without material penalty or liability;
(iv) containing a covenant limiting the ability of any Acquired Company to compete or engage in any oneline of business or to compete with any Person in any geographic area that is not terminable by such Acquired Company upon notice of thirty (30) days or less without material penalty or liability;
(v) relating to or evidencing indebtedness for borrowed money or any guarantee of indebtedness for borrowed money by any Acquired Company in excess of $1,000,000 (excluding loans to wholly-year period over its remaining term, other than purchase orders entered into owned Subsidiaries in the ordinary course of business consistent with past practice);
(iivi) that is a joint venture, partnership, strategic alliance, research and development project or similar arrangement that is material to the business of the Acquired Companies taken as a whole;
(vii) that (A) is with any sole-source suppliers of material products or services, or (B) obligates the Company with respect to any “most favored nation” clauses, any exclusive dealing or minimum purchase or sale, “take or pay” obligations, requirement to purchase substantially all of the output or production of a particular supplier, or (C) prohibits the Company or its Subsidiaries from acquiring products or services from any Person and, in each case of clause (B) and (C) is material to the Company;
(viii) that is a Company Inbound License or Company Outbound License;
(ix) that is the type of Contract entered into with that would be required to be disclosed under Item 404 of Regulation S-K of the Exchange Act; or
(x) an Affiliatewith any present or former officer, officer director or director of Seller or any of its Subsidiaries or employee of any Transferred Entity Acquired Company (other than employment related agreements or indemnification, confidentiality, assignment of invention, equity awards or similar types of agreements entered into in the ordinary course of business in connection with their engagement).
(yb) Each Contract of the type described above in this Section 4.8, whether or not set forth in Section 4.8 of the Company Disclosure Schedule, is referred to herein as a “Material Contract”. Except Material Contracts that have expired or terminated by their terms, as of the date hereof, all of the Material Contracts are valid and binding on the Acquired Companies, as the case may be, and, to the Knowledge of the Company, each other party thereto, as applicable, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable Law affecting creditors’ rights generally and by general principles of equity. As of the date hereof, no Acquired Company has, and to the Knowledge of the Company, none of the other parties thereto have, violated any entity controlled by an officer provision of, or director committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of Seller time or any of its Subsidiaries or both would constitute a default under the provisions of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging Material Contract, except in any line of business or activity in any geographic region in each case for those violations and defaults which the Business operateshave not had, other than any such restrictions that are not and would not reasonably be expected to be material to the Businesshave, taken as a whole;
(iv) any Contract entered into with the customers individually or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (eachaggregate, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; Company Material Adverse Effect and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, no Acquired Company has received written notice of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effectforegoing. Seller The Company has made available to Purchaser a Parent complete and correct copy copies of each written all Material Contract, Contracts in each case, effect as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(aSchedule 3.8(a) of the Seller Disclosure Letter contains a list (orlists, as applicableof Signing Date, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which any Acquired Company is a party or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or which any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that assets is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bondsbound, other than Contracts that are listed as Retained Assets in Schedule 5.2(b)(4) (each a “Major Contract”) and, to the extent that a Major Contract is oral, such Schedule contains an accurate summary of the material terms thereof:
(1) each employment agreement (other than (A) any such employment agreement that is or on the Closing Date will be terminated pursuant terminable at will by any Acquired Company without any obligation of any Acquired Company, except any obligation with respect to and events before the termination thereof or (B) any agreement with any employee addressing non-disclosure of confidential information, assignment of Intellectual Property, non-solicitation or non-competition entered into in accordance with Section 6.07(bthe Ordinary Course of Business of an Acquired Company);
(viii2) each covenant not to compete that restricts in any Contract to make capital expenditures in excess material respect the operation of $1,000,000the business of any Acquired Company;
(ix3) each operating lease (as lessor or lessee) of tangible personal property (other than any such lease that contemplates aggregate payments of less than $1,000,000 per year);
(4) each Contract to pay or receive any royalty or license fee or to license (either as licensor or licensee) any Contract providing material Intellectual Property (other than any (A) license for Intellectual Property embedded in any equipment or fixture, (B) non-exclusive implied license of Intellectual Property, or (C) non‑exclusive license for the grant to any third-party use of any right of first refusal commercially available off‑the‑shelf software);
(5) each Contract regarding any management service or consulting or other similar rights type of Contract (other than any such Contract that is or on the Closing Date will be terminable at will or upon not more than 90 days’ notice by any Acquired Company without any obligation of any Acquired Company, except any obligation with respect to purchase any of events before the Business’ assets, properties or businessestermination thereof);
(x6) each Contract for the purchase by any Acquired Company of any supply, manufacturing, distribution, advertising or promotion of products or services (other than any such Contract entered into that (A) is or on the Closing Date will be terminable at will or upon not more than 90 days’ notice by any Acquired Company without any obligation of any Acquired Company, except any obligation with respect to events before the customers termination thereof, (B) contemplates aggregate payments of less than $1,000,000 per year, or suppliers (C) is a purchase order executed in the Ordinary Course of Business of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such PersonAcquired Companies);
(xi7) 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, any Acquired Company (other than any (A) purchase money agreement, conditional sales contract, capital lease or other similar Contract evidencing any Encumbrance only on tangible personal property, under which there exists under such item aggregate future payments of less than $1,000,000 per year, (B) protective filing of any financing statement under the Uniform Commercial Code or (C) item creating or otherwise providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts any Encumbrance on real property that is shown on a title commitment or other arrangements title insurance provided to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Buyer);
(xii8) each Contract under which any Acquired Company is obligated to repay or has guaranteed any outstanding Indebtedness or remains obligated to lend to any other Person, other than another Acquired Company;
(9) each Contract under which any Acquired Company has advanced or loaned any other Person any amount that remains outstanding (other than any amount advanced or loaned to (A) another Acquired Company or (B) an employee of an Acquired Company);
(10) each outstanding power of attorney with respect to any Acquired Company (other than those entered into in its Ordinary Course of Business in connection with any Intellectual Property or Tax matter);
(11) each Real Property Lease;
(12) each partnership, joint venture or similar Contract;
(13) each Contract, other than any Contract of a nature described in clause (a)(1) or (a)(5) above, with (A) any Contracts entered into with Seller or Affiliate of a Target Company, other than another Acquired Company, or (B) any officer or director of any Acquired Company;
(14) each Contract for the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements sale of any product or service from offered by any Acquired Company (other than any such PersonContract that (A) is or on the Closing Date will be terminable at will or upon not more than 90 days’ notice by any Acquired Company without any obligation of any Acquired Company, that contain “take except any obligation with respect to products or pay” provisions services ordered before the termination thereof, (B) contemplates aggregate payments less than $1,000,000 per year, or that contain minimum (C) is a purchase requirements;order executed in the Ordinary Course of Business of the Acquired Companies); or
(xiii15) each Contract containing any Contract which involves the sale, transfer or acquisition form of most favored pricing provision in favor of any business to or by customer of any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessAcquired Company.
(b) Section 4.12(b) The Target Companies have provided to Buyer a true, correct and complete copy of each Major Contract (or, to the extent that a Major Contract is oral, an accurate summary of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of material terms thereof). With respect to each Contract pursuant to which Seller or any of its Subsidiaries Major Contract: (other than a Transferred Entity1) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Major Contract is a legal, valid and binding obligation of Seller or one of its Subsidiariesbinding, in full force and effect and enforceable against such Person (except to the extent enforceability may be limited by any Enforcement Limitation) in accordance with its terms against the Acquired Company that is a party thereto or whose assets are bound thereby and, to Sellerany Acquired Company’s Knowledge, against each other party thereto, and (2) such Acquired Company is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Sellerany Acquired Company’s Knowledge, no other party thereto is in material breach of or material default under such Major Contract and no party thereto has given to any other party thereto written notice alleging that such Material Contract is in a breach or default thereunderoccurred, and to Seller’s Knowledge (3) no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse the passage of time or both), giving of notice) would constitute a material breach or material default of, or permit any early termination, modification, acceleration or cancellation of, such Major Contract. Notwithstanding the foregoing, without limiting any terms or provisions therein, any Contracts entered into on the part of Seller date hereof in connection with the transactions contemplated hereby among (i) any Acquired Company, (ii) one or more Sellers and (iii) Buyer or any of its SubsidiariesAffiliates, or any other party to such Material Contract, nor has Seller or any shall be excluded from the scope of its Subsidiaries received any notice of any such breach, default, event or condition, except, the representations and warranties contained in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectthis Section 3.8.
Appears in 1 contract
Samples: Equity Purchase Agreement (Fortune Brands Home & Security, Inc.)
Contracts. (a) Section 4.12(a5.15(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of Schedule lists the following Transferred Contracts (other than Real Property Leasescollectively, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) all Contracts to which any Contract that Acquired Company is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than a party (excluding purchase orders entered into that have been performed in the ordinary course all respects and for which there are no further liabilities or obligations outstanding) that are with customers, suppliers, or vendors providing for aggregate or annual expenditures or receipts or payments by such Acquired Company of business consistent $100,000 or more, except any Contracts with past practicecustomers that have been performed in all respects and for which there are only warranty obligations outstanding;
(ii) any Contract entered into with (x) all Contracts to which an Affiliate, officer or director Acquired Company is a party relating to Indebtedness of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitysuch Acquired Company;
(iii) all Contracts to which an Acquired Company is a party relating to employment or compensation of any Contract salaried (rather than hourly-based) Employee or containing any change-in-control or severance payment obligations;
(iv) all Contracts to which an Acquired Company is a party that restricts the Business from competing are with independent contractors or consultants providing for annualized remuneration in excess of (or that is reasonably expected to be in excess of) $100,000;
(v) all agency, marketing, and advertising Contracts to which an Acquired Company is a party;
(vi) all Contracts to which an Acquired Company is a party relating to equity grants, or equity options;
(vii) all lease agreements (whether of real or personal property) to which an Acquired Company is a party providing for annual rentals in excess of $100,000;
(viii) all Contracts to which an Acquired Company is a party that is with any Person or engaging Affiliate of such Acquired Company;
(ix) all Contracts to which an Acquired Company is a party restricting the ability of such Acquired Company to engage in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract compete with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) all Contracts to which an Acquired Company is a party that provide for the indemnification by such Acquired Company of any Contract entered into with the customers current or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing former director or terms in favor officer of such PersonAcquired Company;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under all Contracts or other arrangements to which it an Acquired Company is a party for goods that relate to the acquisition or services furnished by disposition of any business, a material amount of stock or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, assets (in the absence case of assets, other than the breach acquisition or disposition of inventory in the Ordinary Course of Business’ ) of any other covenants and agreements under such agreementPerson, $500,000or any real property (whether by merger, sale of stock, sale of assets, or otherwise);
(xii) all Contracts to which an Acquired Company is a party that are with any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsGovernmental Authority;
(xiii) any Contract all Contracts to which involves the sale, transfer or acquisition of any business to or by any third an Acquired Company is a party that was entered into since May 21provide for any joint venture, 2015 and that contains any material continuing obligations of Seller partnership, or any of its Subsidiariessimilar arrangement; and
(xiv) any Contract with any employee leasing all other Contracts to which an Acquired Company is a party that are not made in the Ordinary Course of Business or staffing company by which such employee leasing or staffing company’s employees or contractors provide services that are material to the BusinessAcquired Companies taken as a whole.
(b) Except as set forth in Section 4.12(b5.15(b) of the Seller Disclosure Letter sets forth a complete and correct listSchedule, as each of the date hereofMaterial Contracts is in full force and effect, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiariesthe applicable Acquired Company, and is enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or moratorium, and other similar Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered ). Except as set forth in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and includingSection 5.15(b) the date of this Agreement.
(d) As of the date hereofDisclosure Schedule, none of Sellerno Acquired Company, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract andnor, to the Knowledge of SellerSellers, no any other party to any such Material Contract thereto, is in material breach of, or material default thereunderunder, and or has provided or received any written notice of any intention to Seller’s terminate, any Material Contract. Except as set forth in Section 5.15(b) of the Disclosure Schedule, to the Knowledge of Sellers, no event or condition circumstance has occurred and is continuing that constitutes or would constitute (that, with or without notice or lapse of time or both), a breach would (i) constitute an event of default under any Material Contract or default on (ii) cause or permit the part acceleration of Seller or any of its Subsidiariesmaterial obligation, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice the loss of any such breachmaterial benefit, defaultof the Acquired Company thereunder, event or condition, except, result in each case, any Acquired Company becoming liable for any such breachliquidated or other damages. Complete and correct copies of each Material Contract (including all material modifications, defaultamendments, event or condition that individually or in the aggregate, has not had and would not reasonably be expected supplements thereto and waivers thereunder) have been made available to have a Material Adverse EffectBuyers.
Appears in 1 contract
Samples: Securities Purchase Agreement (Global Power Equipment Group Inc.)
Contracts. (a) Except as set forth in Section 4.12(a) 2.18 of the Seller Interwave Disclosure Letter contains a list (orSchedule, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according date hereof neither Interwave nor any of its Subsidiaries is a party to each subsection of this Section 4.12(a) which applies to such Contract, of each or is bound by any of the following Transferred Contracts (other than Real Property Leases, Benefit Plans any such Contract which is no longer of any force or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”effect):
(i) any employment or consulting Contract with any Employee, or (ii) any service, operating or management Contract with respect to any of its facilities (whether leased or owned) other than (A) those that is required are terminable by Interwave or any of its terms or is currently expected to result in the payment or receipt by the Business of Subsidiaries on no more than ninety (90) days' notice without liability or financial obligation to Interwave, and (B) those that do not involve in excess of $1,000,000 in the current fiscal year 200,000 (or, with respect to consulting Contracts, $100,000) being paid by Interwave per annum;
(b) any Contract of indemnification or in any one-year period over its remaining term, guaranty (other than purchase orders any Contract of indemnification or warranty entered into in connection with the sale, license, distribution or marketing of products or services or Contracts which typically contain indemnity provisions but which are not primarily indemnification agreements (such as leases for real property, service contracts and the like), entered into in the ordinary course of business consistent with past practicebusiness);
(iic) any Contract entered into with (x) an Affiliate, officer or director containing any covenant limiting in any respect the right of Seller Interwave or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging to engage in any line of business or activity to compete with any person or granting any exclusive distribution rights;
(d) any Contract relating to the disposition or acquisition by Interwave 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 Interwave or any of its subsidiaries has any material ownership interest in any geographic region in which the Business operatescorporation, partnership, joint venture or other business enterprise other than Interwave's Subsidiaries;
(e) any such restrictions dealer, distributor, joint marketing or development Contract under which Interwave or any of its Subsidiaries have continuing material obligations to jointly market any Interwave Product and which may not be canceled without penalty upon notice of ninety (90) days or less, or pursuant to which Interwave or any of its Subsidiaries have continuing material obligations to jointly develop any Intellectual Property that are will not be owned, in whole or in part, by Interwave or any of its Subsidiaries and would which may not reasonably be expected canceled without penalty upon notice of ninety (90) days or less;
(f) any Contract to be license any third party to manufacture, reproduce, sell or distribute any Interwave Products, 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 Alvarion;
(g) any Contract to provide source code to any third party for any Interwave Product that is material to the Business, Interwave and its Subsidiaries taken as a whole;
(ivh) any Contract entered into with mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the customers borrowing of money or suppliers extension of credit, other than trade payables incurred in the Business listed on Section 4.17 and 4.18 ordinary course of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personbusiness;
(vi) all Contracts pursuant to any material settlement agreement under which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to Interwave has ongoing obligations; and
(j) any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished 165,000 being paid by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or Interwave per annum. Neither Interwave nor any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services , nor to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, Interwave's knowledge any other party to any Material Contract has exercised required to be disclosed in Section 2.17 or 2.18 of the Interwave Disclosure Schedule (any termination rights such contract, an "Interwave Contract"), is in material breach, violation or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contractdefault under, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller and neither Interwave nor any of its Subsidiaries is in breach has received written notice that it has breached, violated or default under any Material Contract anddefaulted under, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, the material terms or conditions of any Interwave Contract in such a manner as would permit any other party to cancel or terminate any such Material Interwave Contract, nor has Seller or would permit any of its Subsidiaries received any notice of any such breach, default, event other party to seek material damages or condition, except, in each case, other remedies (for any or all of such breachbreaches, defaultviolations or defaults, event or condition that individually or in the aggregate). To Interwave's knowledge, no third party has not had breached, violated or defaulted under any of the material terms of any Interwave Contract. Interwave has made available to Alvarion true and would not reasonably be expected to have a Material Adverse Effectcorrect copies of all Contracts between Interwave and its top ten customers (based on revenues for the twelve months ended March 31, 2004).
Appears in 1 contract
Contracts. (a) Section 4.12(a3.11(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Company Disclosure Letter sets forth a complete and correct list, accurate list of all Contracts to which the Company or any of its Subsidiaries is a party or by which any of the assets of the Company or any of its Subsidiaries is bound as of the date hereof, of each Contract this Agreement:
(i) in connection with which or pursuant to which Seller the Company and its Subsidiaries (A) are reasonably likely to spend or seek payment of more than $250,000 during the current fiscal year or during the next fiscal year or (B) have spent or sought payment of more than $250,000 during the 2011 fiscal year;
(ii) that prohibits or otherwise restricts the Company or any of its Subsidiaries (other than or, after consummation of the transactions contemplated by this Agreement, the Parent or any of its Affiliates) from freely engaging in any business (whether by means of a Transferred Entity) is a party that is used non- compete obligation, grant of exclusive rights or held for use inotherwise), but not exclusivelyincluding the research, development and commercialization of products anywhere in the world or that arises out of, but not exclusively, contains any “most favored nation” or similar provisions granted by the Business and pursuant to which the Business obtains Company or any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against exclusivity obligations imposed on the Company or any of its Subsidiaries or grants by the Company or any of its Subsidiaries of rights of first refusal, first offer or similar rights;
(iii) that is or would be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries;
(iv) that is an employment or consulting agreement with any executive officer or other employee of the Company or any of its Subsidiaries or member of the Company Board earning an annual base salary from the Company or any of its Subsidiaries in excess of $150,000;
(v) that is a settlement agreement entered into after January 1, 2010 in respect of a Legal Proceeding, other than settlement agreements that only contemplate the making of a cash payment not in excess of $250,000;
(vi) with respect to the formation, creation, operation, management or control of a joint venture, strategic alliance, collaboration or co-promotion or requiring the Company or any of its Subsidiaries to reimburse any Person for research and development costs;
(vii) with respect to (A) indebtedness for borrowed money (including the issuance of any debt security) to any Person other than the Company or any of its Subsidiaries, (B) any obligations evidenced by notes, bonds, mortgages, debentures or similar Contracts to any Person other than the Company or any of its Subsidiaries (any obligation described in accordance with this clause (B) or the foregoing clause (A) being referred to herein as “Indebtedness”), (C) any capital lease obligations to any Person other than the Company or any of its terms andSubsidiaries, (D) any obligations to Sellerany Person other than the Company or any of its Subsidiaries in respect of letters of credit and bankers’ acceptances, (E) any indebtedness to any Person other than the Company or any of its Subsidiaries under interest rate swap, hedging or similar agreements, (F) any obligations to pay to any Person other than the Company or any of its Subsidiaries the deferred purchase price of property or services, (G) indebtedness secured by any Lien on any property owned by the Company or any of its Subsidiaries even though the obligor has not assumed or otherwise become liable for the payment thereof, or (H) any guaranty of any such obligations described in clauses (A) through (G) of any Person other than the Company or any of its Subsidiaries, in each case, having an outstanding amount in excess of $250,000 individually or $750,000 in the aggregate;
(viii) involve the acquisition from another Person or disposition to another Person, directly or indirectly (by merger, license or otherwise), of (A) capital stock or other equity interests or (B) any other assets, in the case of clause (B) for aggregate consideration under such Contract (or series of related Contracts) in excess of $250,000 (other than acquisitions or dispositions of inventory, properties, rights, licenses and other assets in the Ordinary Course of Business);
(ix) prohibit (A) the payment of dividends or distributions in respect of the capital stock of, (B) the pledging of the capital stock of or (C) the issuance of any guaranty by, the Company or any of its Subsidiaries; or
(x) that is disclosed in Section 3.10(c)(ii) of the Company Disclosure Letter. The Company has made available to the Parent a complete and accurate copy of each Company Material Contract, including any amendments or supplements thereto.
(b) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the Company’s Knowledge, each other party thereto, and is in full force and effect subject and enforceable in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Lawaccordance with its terms, except for such failures where the failure to be a legalvalid, valid binding, enforceable and binding obligation, enforceable, or in full force and effect thateffect, individually or in the aggregate, have has not had had, and would not be reasonably be expected likely to have have, a Company Material Adverse Effect. Seller has made available The Company and each of its Subsidiaries and, to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to SellerCompany’s Knowledge, any other party thereto, has performed all obligations required to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such be performed by it under each Company Material Contract, except where such noncompliance, individually or in each case other than any termination at the end aggregate, has not had, and would not be reasonably likely to have, a Company Material Adverse Effect. None of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor the Company or any of its Subsidiaries is in breach or default of any Company Material Contract, except where such breach or default, individually or in the aggregate, has not had, and would not be reasonably likely to have, a Company Material Adverse Effect. There are no events or conditions that would result in the termination of or a right of termination or cancellation under any Company Material Contract andContract, to accelerate the Knowledge performance of Sellerobligations required thereby, no other party to or result in the loss of any such Material Contract is in breach benefit thereunder or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time time, or both), ) a default or breach or default on by the part of Seller Company or any of its Subsidiaries, or to the Company’s Knowledge, on the part of any other party to counterparty under such Company Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breachexcept as, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had had, and would not be reasonably be expected likely to have have, a Company Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has entered into any transaction that would be subject to disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in the Company SEC Reports.
Appears in 1 contract
Contracts. Except as set forth on SCHEDULE 3.13 (the "MATERIAL CONTRACTS"):
(a) Section 4.12(a) of the Seller Disclosure Letter contains a list (orXxxx does not have any contracts, as applicablecommitments, contains a cross-reference to another Section of the Seller Disclosure Letter arrangements or understandings that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior relate to the Closing Date are collectively referred to herein as Business which may involve the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment expenditure or receipt by the Business EMI Division of more than $1,000,000 in the current fiscal year 100,000 for any individual contract, commitment, arrangement or in any one-year period over its remaining term, other than purchase orders understanding or which was not entered into in the ordinary course of business consistent with past practicebusiness. Except as contemplated by this Agreement and except as such rights may be assigned to the Buyer pursuant to the terms and conditions of this Agreement, the legal enforceability after the Closing of the rights of Xxxx under any of its contracts that relate to the Business will not be affected in any manner by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby;
(b) Xxxx has no sales or purchase commitments that relate to the Business which are in excess of the normal, ordinary and usual capacity or requirements of its business or which are not terminable on thirty (30) days' notice and without liability, penalty or premium; and
(c) Xxxx is not a party to or bound by (i) any outstanding contract with officers or employees of the Business that is not cancelable by Xxxx on notice of not longer than thirty (30) days and without liability, penalty or premium, or (ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract agreements that restricts relate to the Business from competing that contain any severance or termination pay, liabilities or obligations. Except as set forth on SCHEDULE 3.13, Xxxx is not a party with any Person or engaging in governmental authority to any line of business or activity in any geographic region in which the Business operates, other than any such restrictions material contract that are not and would not reasonably be expected to be material relates to the Business, taken as a whole;
(iv) any . Each Material Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it Xxxx is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, is valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable against Xxxx in accordance with its terms.
(e) Neither Seller nor , assuming the due authorization, execution and delivery thereof by each of the other parties thereto. Xxxx is not in default in the observance or the performance of any of its Subsidiaries is in breach material term or default obligation to be performed by it under any Material Contract and, to which it is a party. To the Knowledge best of SellerXxxx'x knowledge, no other party to any such Material Contract person is in breach default in the observance or default thereunder, and the performance of any term or obligation to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or be performed by it under any of its Subsidiaries, or any other party to such Material Contract, nor . Xxxx has Seller or any delivered to the Buyer true and complete copies of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a all Material Adverse EffectContracts.
Appears in 1 contract
Samples: Asset Purchase Agreement (Johnstown America Industries Inc)
Contracts. (a) Section 4.12(aList of Contracts. Part 2.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):Schedule accurately identifies:
(i) (A) each Acquired Companies Contract relating to the employment of, or the performance of services by, any Contract that is required by its terms or is currently expected to result Acquired Companies Employee and providing for payments in the payment or receipt by the Business any twelve (12) month period of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, 100,000 other than purchase orders entered into Acquired Companies Employee Plans and at-will offer letters that contain no severance or change of control provisions; (B) any Acquired Companies Contract pursuant to which any of the Acquired Companies is or will become obligated to make any severance, termination or similar payment to any Acquired Companies Employee; and (C) any Acquired Companies Contract pursuant to which any of the Acquired Companies is or will become obligated to make any bonus or similar payment (other than payment in the ordinary course respect of business consistent with past practicesalary) to any Acquired Companies Employee;
(ii) any each Acquired Companies Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or which provides for indemnification of any Transferred Entity officer, director, employee or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entityagent;
(iii) any each Acquired Companies Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material relating to the Business, taken as voting and any other rights or obligations of a wholestockholder of any of the Acquired Companies;
(iv) each Acquired Companies Contract relating to any Contract entered into merger, consolidation, reorganization or any similar transaction with the customers or suppliers respect to any of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such PersonAcquired Companies;
(v) all each Acquired Companies IP Contract (other than: (A) agreements between any of the Acquired Companies and its employees in connection with their employment in the current standard form made available to the Purchaser without any material deviation thereto; and (B) Contracts pursuant for Commercial Software or Open Source Code) relating to which Sellerthe acquisition, transfer, development or sharing of any Software or Intellectual Property Rights (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies);
(vi) each Acquired Companies Contract (other than: (A) agreements between any of the Acquired Companies and its Subsidiaries employees in connection with their employment in the current standard form made available to the Purchaser without any material deviation thereto; and (B) Contracts for Commercial Software or Open Source Code) relating to the license of any Software or Intellectual Property Rights to any of the Acquired Companies;
(vii) each Acquired Companies Contract relating to the acquisition, sale, spin-off or outsourcing of any business unit or operation of any of the Acquired Companies;
(viii) each Acquired Companies Contract creating or relating to any partnership or joint venture or other similar arrangement for the pooling and sharing of revenues, profits, losses, costs or liabilities;
(ix) each Acquired Companies Contract imposing any restriction on any of the Acquired Companies: (A) to compete with any other Person; (B) to acquire any product or other asset or any Transferred Entity receives services from any other Person; (C) to sell any product or grants a license other asset to material or perform any services for any other Person; or (D) to transact business with any other Person;
(x) each Acquired Companies Contract: (A) granting exclusive rights to license, market, sell, support or deliver any Acquired Companies Product; (B) otherwise contemplating an exclusive relationship between any of the Acquired Companies and any other Person; or (C) involving the grant of “most favored nation” status to any Person or other preferential rights;
(xi) each Acquired Companies Contract relating to the Acquired Companies’ sales and marketing, advertising or promotional activities, including agreements creating or involving any agency relationship, sales representative, channel partner, co-marketing, distribution or reseller arrangement or franchise relationship that involve payments in any twelve (12) month period of more than $25,000;
(xii) each Acquired Companies Contract requiring future development or delivery of any Intellectual Property from Rights or Software by any of the Acquired Companies;
(xiii) each Acquired Companies Contract related to enrollment in or participation in Federal Health Care Programs;
(xiv) each Acquired Companies Contract that is a customer Contract (A) for pharmacies for which the annual revenue is $100,000 or more for the twelve (12) month period ending June 30, 2016 or for which there are 75 or more covered locations under the Contract; (B) with a health plan; or (C) with a manufacturer;
(xv) each Acquired Companies Contract related to the provision of point of care or pharmacogenetic testing or clinical research;
(xvi) each Acquired Companies Contract with physicians, other sources of referrals, or recipients of referrals to or for items or services provided by any of the Acquired Companies;
(xvii) each Acquired Companies Contract regarding the acquisition, issuance or transfer of any securities and each Acquired Companies Contract affecting or dealing with any securities of any of the Acquired Companies including any restricted share agreements or escrow agreements;
(xviii) each Acquired Companies Contract involving any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement;
(xix) any Acquired Companies Contract (A) imposing any confidentiality obligation on any of the Acquired Companies or on any other Person (other than (1) routine nondisclosure agreements entered into by any of the Acquired Companies in the ordinary course of business, (2) end user licenses in the current standard form disclosed to the Purchaser pursuant to Section 2.11(g) without any material deviation thereto and subscriptions (3) immaterial Acquired Company Contracts with customers for Software obtained from a third party (A) on general commercial terms and that continues Acquired Company Products in the standard form made available to be widely available on such commercial termsthe Purchaser without any material deviation thereto), (B) that is not distributed with containing “standstill” or incorporated in any Product, similar provisions or (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments providing any right of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (eachfirst negotiation, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights right to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xixx) any Acquired Companies Contract providing (A) with a customer, which together with any other Acquired Companies Contract with the same customer produced aggregate annual revenue of $20,000 or more for on-going indemnification obligations as either of the date twelve (12) month periods ending September 30, 2015 or September 30, 2016, that may not be terminated by any of this Agreement the Acquired Companies (without penalty) within twelve (12) months of the Closing Date or (B) with a vendor or service provider that may not be terminated by any of the Business Acquired Companies (without penalty) within twelve (12) months of the Closing Date;
(xxi) any Acquired Companies Contract under which any of the Transactions would give rise to or expand any rights in favor of, or any obligations on the part of, any of the Acquired Companies or any other than in respect Person;
(xxii) each Acquired Companies Contract relating to the purchase or sale of any asset by or to, or the performance of its obligations under Contracts or other arrangements to which it is a party for goods or any services furnished by or to itfor, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Related Party;
(xiixxiii) each Acquired Companies Contract relating to any Contracts entered into with the customers liquidation or suppliers dissolution of any of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its SubsidiariesAcquired Companies; and
(xivxxiv) any Acquired Companies Contract with that contemplates or involves: (A) the payment or delivery of cash or other consideration by any employee leasing of the Acquired Companies in an amount or staffing company having a value in excess of $50,000; or (B) the performance of services by which such employee leasing any of the Acquired Companies having a value in excess of $100,000 in the aggregate. (Contracts in the respective categories described in clauses “(i)” through “(xxiv)” above and identified, or staffing company’s employees or contractors provide services required to the Business.
(b) Section 4.12(bbe identified, on Part 2.12(a) of the Seller Disclosure Letter sets forth a complete and correct listSchedule, as all Contracts identified, or required to be identified, in Part 2.10(b) of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party theretoDisclosure Schedule, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equityAcquired Companies Business Associate Agreements, regardless of whether considered in a proceeding in equity or at Law, except for such failures not required to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default identified on the part of Seller or any of its SubsidiariesDisclosure Schedule, or any other party are referred to such in this Agreement as “Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectContracts.”)
Appears in 1 contract
Samples: Stock Purchase Agreement
Contracts. (a) Section 4.12(aSchedule 4.9(a) of the Seller Disclosure Letter contains sets forth a complete list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than of any written contract in respect of the performance of its obligations under Contracts or other arrangements Business to which it the Company or any Subsidiary is a party or by which any of them is bound other than Employee Benefit Plans (collectively, the "Material Contracts"):
(i) that involves the expenditure by the Company or the Subsidiaries of more than $3,000,000 in any instance for goods the purchase of materials, supplies, equipment or services furnished services, excluding any such contract that is terminable by the Company or a Subsidiary without penalty on not more than 90 days notice;
(ii) is an indenture, mortgage, loan agreement, capital lease, security agreement, or other agreement for the borrowing of money in excess of $50,000;
(iii) that guarantees the obligations of another Person (other than the Company or any Subsidiary) involving the potential expenditure by the Company or the Subsidiaries after the date of this Agreement of more than $50,000, or under which any Person has guaranteed any liabilities or obligations of the Company or any Subsidiary;
(iv) that restricts the Company or any Subsidiary after the date of this Agreement from engaging in any line of business in any geographic area or competing with any Person that materially impairs or would reasonably be expected to materially impair the operation of the Business;
(v) that is a license agreement (as licensor or licensee) with third parties under which the Company or any Subsidiary is obligated to pay or is expected to receive after the date of this Agreement an amount in excess of $50,000 during any calendar year or that is otherwise material to the Business;
(vi) that is a partnership, limited liability company or joint venture agreement;
(vii) under which the Company or any Subsidiary has obligations or contingent liabilities after the date of this Agreement relating to the acquisition or sale of any business enterprise;
(viii) that is an exclusive distributor, dealer or similar contract;
(ix) contracts between the Company or a Subsidiary, on the one hand, and either of the Sellers or any Affiliates of either of the Sellers (excluding the Company and the Subsidiaries), on the other, which provides for aggregate payments after the date hereof by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller Company or any Subsidiary of its Subsidiariesmore than $250,000 during any one-year period; and
(xivx) any Contract with any employee leasing contract that contains rights or staffing company by which such employee leasing or staffing company’s employees or contractors provide services obligations relating to both the BusinessBusiness and the Prime Energy Division.
(b) Section 4.12(b) of the Seller Disclosure Letter sets Except as set forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”Schedule 4.9(b).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is in full force and effect, and is a legal, valid and binding obligation agreement of Seller the Company or one a Subsidiary, and, to the Sellers' knowledge, each of its Subsidiariesthe other parties thereto, enforceable against such Person the Company or Subsidiary in accordance with its terms andterms, subject to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or other Laws affecting creditors’ ' rights generally and subject to generally, general equitable principles of equity, regardless of (whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid law) and binding obligation, enforceable, or in full force an implied covenant of good faith and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effectfair dealing. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, Except as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Sellerset forth on Schedule 4.9(b), no other party to any such Material Contract is in breach condition exists or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (whether with or without notice or lapse of time or both), ) would constitute a breach or default on by (x) the part of Seller Company or any of its SubsidiariesSubsidiary under any Material Contract or (y) to the Sellers' knowledge, or any other party to such any Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, except for any such breachdefaults that would not, default, event or condition that individually or in the aggregate, has not had and would not be reasonably be expected likely to have a Material Adverse Effect. Complete copies of (i) each such Material Contract (including all modifications and amendments thereto and waivers thereunder) and (ii) all form contracts, agreements or instruments used in and material to the Business have been made available to each Investor.
Appears in 1 contract
Contracts. (a) Section 4.12(a3.10(a) of the Seller Disclosure Letter contains a list (or, Schedules sets forth as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such Contract, Agreement a true and complete list of each of the following Transferred Business Contracts (including the Vendor Contracts that are the subject of Section 5.16, assuming such Vendor Contracts become Unbundled by the Closing Date) (other than Real Property Leasespurchase orders and invoices, Benefit Plans and, in each case, other than any Contract that will be used to provide services, assets or Employment Agreementsproducts pursuant to the Transaction Documents) (the contracts listed each such Contract set forth or required to be set forth on Section 4.12(a3.10(a) of the Seller Disclosure Letter together Schedules, along with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the LSTA Agreement, a “Material ContractsContract”):
(i) any Contract that is required by its terms with a Material Customer or is currently expected to result in the payment or receipt by Material Vendor;
(ii) any Contract with a distributor for the Business with an ACV in excess of more than fifty thousand Dollars ($1,000,000 50,000) per year;
(iii) any joint venture, partnership or other similar agreement involving co-investment, profit-sharing or a similar arrangement between the Business with a third party;
(iv) any Contract containing covenants that would restrict or limit in any material respect the current fiscal year ability of the Business (or Purchaser or any of its Affiliates after the Closing) to engage in any business or with any Person or in any one-year period over geographic area (excluding Contracts that (A) are terminable by Seller or its remaining termAffiliate(s) part(ies) thereto without cause on no more than ninety (90) days’ prior notice to the other part(ies) thereto or (B) have a term expiring within six (6) months after the date hereof);
(v) any Contract that grants exclusivity in favor of any other Person or grants any right of first refusal, right of first offer or similar preferential rights;
(vi) any Contract pursuant to which a third party grants a license to any Intellectual Property Rights material to the Business (but excluding any Contract for commercially available Software or data that is not material to the Business or a Business Product), or pursuant to which Seller or its Subsidiaries grants a license to any material Business Intellectual Property to any third party (other than non-exclusive licenses granted in the ordinary course of business);
(vii) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) under which, after the Closing, the Business will have a material obligation with respect to an “earn out”, contingent purchase orders entered into price or similar contingent payment obligation or any other material Liability or that has not been consummated as of the date hereof;
(viii) to the Knowledge of Seller, any Contract evidencing or granting any Lien (other than a Permitted Lien) on any of the Purchased Assets;
(ix) any Contract material to the Business providing for a material obligation for the indemnification of any Person by Seller or any of its Affiliates in respect of the Business (excluding indemnification of customers, vendors and counterparties to other Business Contracts in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with relating to the customers resolution, settlement, release or suppliers compromise of any actual or threatened Proceeding Primarily Related to the Business listed on Section 4.17 and 4.18 of with a value greater than one hundred thousand Dollars ($100,000) which is an Assumed Liability or which provides for any equitable remedy affecting the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;Business; and
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is with a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessGovernmental Entity.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a true and complete and correct copy of each written Material Contract, Contract in each case, effect as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any . Each Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract full force and effect and is valid, binding and enforceable against the Seller Entity party thereto and, to the Knowledge of Seller, no the other party parties thereto, in accordance with its terms, in each case, subject to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or conditionEnforceability Exceptions, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, as has not had and would not reasonably be expected to have have, individually or in the aggregate, a Business Material Adverse Effect. Neither Seller (or its applicable Subsidiary) nor, to the Knowledge of Seller, any other party to a Material Contract is in material breach or violation of, or material default under, any Material Contract, except, in each case, as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a) of Neither the Seller Disclosure Letter contains Company nor its Subsidiaries is a list (orparty to, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):bound by:
(i) any employment Contract, other than an “at will” employment Contract that is required by its terms or is currently expected to result entered into in the payment or receipt Ordinary Course; any consulting Contract with an individual consultant that involves annual payments by the Business Company or any of its Subsidiaries of more than $1,000,000 50,000 and that is not cancelable without penalty within 90 days; or any Contract to grant any severance or termination pay (in the current fiscal year cash or in otherwise) to any one-year period over its remaining termemployee, other than purchase orders entered into in the ordinary course of business consistent with past practiceofficer or director;
(ii) any Contract entered into with (x) an Affiliate, of indemnification between the Company and any current or former officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitythe Company;
(iii) any Contract that restricts or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the Business from competing with benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any Person of the transactions contemplated by this Agreement or engaging in the value of any line of business or activity in the benefits of which will be calculated on the basis of any geographic region in which of the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholetransactions contemplated by this Agreement;
(iv) any Contract entered into with the customers fidelity or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personsurety bond or completion bond;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other lease of personal property requiring the payment of more than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated $20,000 in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)twelve-month period;
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expensesLease Agreement;
(vii) any Contract evidencing an outstanding loan, advance of indemnification or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bondsguaranty, other than Contracts that will be terminated pursuant to entered into in the Ordinary Course with customers, resellers, distributors, suppliers and in accordance with Section 6.07(b)licensors;
(viii) any Contract to make capital expenditures of indemnification with a customer in excess of $1,000,000100,000 that (A) does not eliminate the Company’s or its Subsidiaries’ potential liability for consequential or incidental damages or (B) place a cap on the potential liability of the Company or its Subsidiaries under such Contract;
(ix) any Contract providing for relating to capital expenditures and involving future payments in excess of $50,000 individually or $100,000 in the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businessesaggregate;
(x) any executory Contract entered into with relating to the customers disposition or suppliers acquisition by the Company or any of its Subsidiaries of any assets outside the Business listed on Section 4.17 and 4.18 Ordinary Course or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any business enterprise other than the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such PersonCompany’s Subsidiaries;
(xi) any Contract providing for on-going indemnification obligations as mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of the date money or extension of this Agreement by the Business credit, other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, accounts receivables and payables in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Ordinary Course;
(xii) any Contracts entered into with the customers partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or suppliers similar Contract involving payments in excess of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person$100,000 since January 1, that contain “take or pay” provisions or that contain minimum purchase requirements2009;
(xiii) any Contract to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which involves the sale, transfer Company directly or acquisition of indirectly holds any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; andinterest;
(xiv) any Contract to sell, license or distribute any of the Company Products or services or any of the Company’s technology, other than agreements with distributors, sales representatives or other resellers in the Ordinary Course;
(xv) any employee leasing License Agreement; or
(xvi) other than customer purchase orders or staffing company by which such employee leasing other customer Contracts, any Contract that involves in excess of $100,000 individually or staffing company’s employees or contractors provide services to $500,000 in the Businessaggregate and is not cancelable without penalty within 90 days.
(b) Section 4.12(b2.17(b) of the Seller Disclosure Letter Schedule contains a list of the Company’s ten largest customers for each of the fiscal years ended December 31, 2007 and December 31, 2008 and sets forth opposite the name of each such customer the percentage of net revenue attributable to such customer. During the last 12 months, the Company has not received any written notice or written threat of termination from any of such customers that such customer intends or otherwise anticipates a termination of, or reduction of more than $100,000 per year in, the level of business with the Company. True and complete and correct list, as of the date hereof, copies of each Contract required to be disclosed pursuant to which Seller or any of its Subsidiaries Section 2.17(a) (other than each a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively“Material Contract” and collectively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Material Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each have been delivered to Parent. Each Material Contract is a legal, valid and binding obligation agreement of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms the Company and, to Seller’s Knowledgethe Knowledge of the Company, of each other party thereto, and is in full force and effect subject in all cases except to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller extent it has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term previously expired in accordance with its terms.
(ec) Neither Seller the Company nor any of its Subsidiaries is in breach or default under any Material Contract andSubsidiaries, nor to the Knowledge of Seller, no the Company any other party thereto, has breached or violated any provisions of, or committed or failed to perform any such Material Contract is in breach or default thereunderact that, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or notice, lapse of time or both), would constitute a breach or default on under the part provisions of Seller or any Material Contract.
(d) Following the Effective Time, the Surviving Corporation will be permitted to exercise all of its Subsidiariesrights under each Material Contract without the payment of any additional amounts or consideration other than ongoing obligations, fees, royalties or any other party payments which the Company would otherwise be required to satisfy, perform or pay pursuant to the terms of such Material Contract, nor has Seller or any Contracts had the transactions contemplated by this Agreement not occurred.
(e) All outstanding indebtedness of the Company and its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably may be expected to have a Material Adverse Effectprepaid without penalty.
Appears in 1 contract
Samples: Merger Agreement (Compuware Corp)
Contracts. (a) Section 4.12(aSchedule 3.14(a) of the Seller Disclosure Letter contains a list (orsets forth, as applicable, contains a cross-by reference to another Section of the Seller Disclosure Letter applicable subsection below, each Contract to which a Valley Acquired Company is a party or by which a Valley Acquired Company or its assets or properties is or may be bound, that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):is:
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into not made in the ordinary course of business consistent with past practice;
(ii) any partnership, joint venture or similar Contract entered into with (x) an Affiliate, officer in effect or director of Seller that includes rights or any of its Subsidiaries or Liabilities of any Transferred Entity Valley Acquired Company which have not expired or (y) any entity controlled by an officer or director terminated as of Seller or any of its Subsidiaries or of any Transferred Entitythe date hereof;
(iii) any Contract (A) containing a covenant not to compete that impairs the ability of a Valley Acquired Company to freely conduct its business in any geographic area or with any Person, (B) that restricts the Business from competing development, manufacture, marketing, distribution or sale of any products or services of a Valley Acquired Company, (C) that restricts or prohibits the transaction of business with any other Person (including by restricting the solicitation of business with any other Person) by a Valley Acquired Company, (D) that restricts or engaging in limits the entering into any market or line of business by a Valley Acquired Company or activity any of its Employees or representatives, (E) prohibiting in any respect a Valley Acquired Company or its business from freely soliciting or hiring any Person, (F) providing for “meet competition,” “most favored nation” pricing terms or similar rights in favor of a Third Party or (G) establishing an exclusive sale or purchase obligation with respect to any Person, product or any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholelocation;
(iv) any Contract entered into with the customers that, if terminated or suppliers of the Business listed not renewed, would reasonably be expected to have a Material Adverse Effect on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Persona Valley Acquired Company;
(v) all Contracts pursuant any Contract relating to which Sellerthe acquisition or disposition of any business (whether by merger, its Subsidiaries sale of stock, sale of assets, or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (Botherwise) that is includes rights or Liabilities of any Valley Acquired Company which have not distributed with expired or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments terminated as of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)date hereof;
(vi) any joint venture, limited liability company Contract relating to Debt in excess of (or partnership Contract with any third-party involving a sharing of profits, revenue or expensesthat could result in Liability greater than) $10,000;
(vii) any Contract evidencing an outstanding loanmanagement service, advance or investment by the Business to or in any Personconsulting, or guarantee by the Business any other similar type of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)Contract;
(viii) any Contract (or group of related Contracts), other than a customer Contract, involving payments by or to make capital expenditures the Valley Acquired Companies in excess aggregate of more than $1,000,00010,000 in any consecutive 12‑month period;
(ix) any Contract providing for the grant to any third-party of any right of first refusal lease, sublease, rental or occupancy agreement, installment and conditional sale agreement (other similar rights to purchase any of the Business’ assets, properties or businessesthan Valley Real Property Leases);
(x) any Contract entered into with any distributor, agency or sales representative for the customers marketing and selling of any of a Valley Acquired Company’s products or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personservices;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts with a Person identified on Schedule 3.17(a) or other arrangements to which it is a party for goods (b) or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Third Party Payor;
(xii) any Contracts entered into Contract with the customers any Seller or suppliers any Affiliate of the Business listed on Section 4.17 and 4.18 of the a Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements(other than employment Contracts);
(xiii) any Contract which involves that would prevent consummation of the saleTransactions, transfer compliance by a Valley Acquired Company or acquisition Valley Seller with the terms, conditions, and provisions of any this Agreement or the Ancillary Agreements, or the continued operation of the business of the Valley Acquired Companies after the Closing Date on substantially the same basis as operated prior to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiariesthe Closing; andor
(xiv) any Contract with any employee leasing labor union, labor organization or staffing company by which such employee leasing or staffing company’s employees or contractors provide services collective bargaining unit. Each Contract of the type described in this Section 3.14(a) is referred to the Businessin this Agreement as a “Valley Material Contract.”
(b) Section 4.12(b) Valley Seller has made available to Holdco true, correct and complete copies of each written Valley Material Contract and correct and reasonably detailed summaries of each oral Valley Material Contract. All Valley Material Contracts are valid and binding Contracts of a Valley Acquired Company, are in full force and effect and are enforceable against each party thereto in accordance with the terms thereof, subject to the Bankruptcy and Equity Exception. There does not exist under any Material Contract any violation, breach or event of default, on the part of a Valley Acquired Company or, to the Knowledge of Valley Seller, any other party thereto. To the Knowledge of Valley Seller, there is no event, occurrence, condition, or act (including the consummation of the Seller Disclosure Letter sets forth Transactions) that, with the giving of notice or the passage of time (or both), is reasonably likely to become a complete and correct list, as default or event of default on the date hereof, part of each Contract pursuant to which Seller or a Valley Acquired Company under any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)Valley Material Contract.
(c) Except for terminations as set forth on Schedule 3.14(c):
(i) no Valley Acquired Company has received any notice in accordance with writing from any third party payor, including Medicare, Medicaid or any private insurance, managed care plans and HMOs (collectively, “Third Party Payors”) that any Third Party Payor has stopped or may stop, materially decrease the rate of, or materially change the terms (whether related to payment, price or otherwise) with respect to the making of such Material Contracts after payments for products or services provided by the date hereof, each Material Contract is Valley Acquired Companies (whether as a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As result of the date hereofconsummation of the Transactions or otherwise), none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Valley Seller, there is no set of facts, event, occurrence, condition, or act (including the consummation of the Transactions), that is reasonably likely to cause any Third Party Payor to do so. To the Knowledge of Valley Seller, there are no material disputes between any Valley Acquired Company and any Third Party Payor;
(ii) the Program Agreements to which any Valley Acquired Company is party and the Valley Material Contracts with Third Party Payors constitute valid, binding and enforceable agreements and are in full force and effect, subject to the Bankruptcy and Equity Exception. No Valley Acquired Company is in material breach under any Program Agreement or under any Valley Material Contract with any Third Party Payor and, to the Knowledge of Valley Seller, the other parties thereto are not in material breach thereunder. No party to any such a Program Agreement or Valley Material Contract is with any Third Party Payor or other Government Entity has threatened in breach writing or default thereunderorally by an employee of a Government Entity revocation, suspension, termination, probation, restriction, limitation or nonrenewal affecting any Program Agreement or Valley Material Contract with any Third Party Payor; and
(iii) except in the course of negotiation and renegotiation of terms in the ordinary course of business, no Valley Acquired Company has received any notice in writing from any third party supplier that any third party supplier has stopped or has an intention to stop, materially decrease the rate of, or materially change the terms (whether related to payment, price or otherwise) with respect to the making of payments for products or services supplied to the Valley Acquired Companies (whether as a result of the consummation of the Transactions or otherwise), and to the Knowledge of Valley Seller’s Knowledge , there is no event set of facts, event, occurrence, condition, or condition has occurred and is continuing that constitutes or would constitute act (with or without notice or lapse including the consummation of time or boththe Transactions), a breach or default on that is reasonably likely to cause any third party supplier to do so. To the part Knowledge of Seller or Valley Seller, there are no material disputes between any of its Subsidiaries, or the Valley Acquired Companies and any other third party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectsupplier.
Appears in 1 contract
Samples: Transaction Agreement (Great Elm Capital Group, Inc.)
Contracts. (a) Section 4.12(a2.13(a) of the Seller Disclosure Letter contains Schedule lists the following Contracts to which the Company is a list party or is bound by (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each whether or not set forth in such section of the following Transferred Contracts Disclosure Schedule, a “Material Contract”), except for any Contract between the Company and Buyer: any employment or consulting Contract, or any employee collective bargaining agreement or other Contract with any labor union or any Company Personnel; any Contract not to compete or otherwise materially restricting the development, manufacture, marketing, distribution or sale of any products of the Company and its Subsidiaries and, to the extent applicable, products under development (collectively, the “Products”) or services; any Contract between the Company and (A) Parent, (B) any former holder of Company Common Stock or (C) any Company Personnel; any lease, sublease or similar Contract with any Person under which the Company is a lessor or sublessor of, or makes available for use to any Person (other than Real Property Leasesthe Company), Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(iA) any Contract that is required by its terms Leased Property or is currently expected to result in the payment or receipt (B) any portion of any premises otherwise occupied by the Business of more than Company; any lease or similar Contract with any Person under which (A) the Company is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person, where the annual payments under any such lease or such Contract exceeds $1,000,000 in 100,000 or (B) the current fiscal year Company is a lessor or in sublessor of, or makes available for use by any one-year period over its remaining termPerson, any tangible personal property owned or leased by the Company, other than purchase orders in those entered into in the ordinary course of business consistent with past practice;
(ii) Ordinary Course; any Contract entered into with (x) an Affiliate, officer for the purchase or director sale of Seller Products or any the furnishing or receipt of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party services (A) calling for performance over a period of more than one year and which is not terminable by the Company on general commercial terms and that continues to be widely available on such commercial terms)ninety (90) days’ notice or less, without payment of a termination fee or similar payment, (B) that is not distributed with requiring or incorporated in any Productotherwise involving payment by or to the Company of more than an aggregate of $100,000, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in which the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (eachCompany has granted manufacturing rights, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing provisions or terms marketing or distribution rights relating to any Products, services or territory and which is not terminable by the Company on ninety (90) days notice or less, without payment of a termination fee or similar payment or (D) in favor which the Company has agreed to purchase a minimum quantity of such Person;
goods or services or has agreed to purchase goods or services exclusively from a certain party; any Contract for the disposition of any significant portion of the assets or business of the Company or any agreement for the acquisition, directly or indirectly, of the assets or business of any other Person involving payment by or to the Company of more than an aggregate of $100,000; any Contract for any joint venture or partnership; any Contract granting a third party any license to or option on any Company Intellectual Property other than in the Ordinary Course, or pursuant to which the Company has been granted by a third party any license to any Intellectual Property which would reasonably be expected to require payment in excess of $100,000 a year; any Contract (xiother than trade debt incurred in the Ordinary Course) under which the Company has borrowed any money from, or issued any note, bond, debenture or other evidence of Indebtedness to, any Person (other than the Company) or any note, bond, debenture or other evidence of Indebtedness issued by the Company or any of its Affiliates to any Person (other than the Company); any Contract (including so-called take-or-pay or “keep well” agreements) under which (A) any Person (including the Company) has, directly or indirectly, guaranteed Indebtedness, liabilities or obligations of the Company or (B) the Company has, directly or indirectly, guaranteed Indebtedness, liabilities or obligations of any Person (in each case other than endorsements for the purpose of collection in the Ordinary Course); any Contract under which the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company) other than in the Ordinary Course; any Contract providing for on-going indemnification obligations as of the date of this Agreement any Person by the Business Company, other than express indemnities included in respect of standard form sales or service contracts, or license agreements, entered into by the performance of its obligations under Contracts Company in the Ordinary Course; or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement Contract under which the aggregate remaining liability consequences of the Business for indemnification obligations thereunder does not exceed, a default or termination would reasonably be expected to result in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services a Material Adverse Change to the BusinessCompany or the Surviving Corporation.
(b) Except as set forth in Section 4.12(b2.13(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofSchedule, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcyeffect, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a is legal, valid valid, binding and binding obligation, enforceable, or in full force enforceable against the Company and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term thereto in accordance with its terms.
(e) Neither Seller nor any , subject to Bankruptcy Laws and Equitable Principles. True and complete copies of its Subsidiaries each of the Material Contract have been delivered to Buyer. There is in no material violation, breach or default under any Material Contract by the Company or, to the knowledge of the Company, by any other party thereto, and, to the Knowledge knowledge of Sellerthe Company, no event has occurred or condition exists that with the lapse of time or the giving of notice or both would constitute a material default thereunder by the Company or any other party thereto. No notice, waiver, consent or approval is required (or the lack of which would give rise to a right of termination, cancellation or acceleration of, or entitle any such Material Contract is in breach or default thereunderparty to accelerate, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without whether after the giving of notice or lapse of time or both), a breach any obligation under the Material Contracts) under or default on relating to any Material Contract in connection with the part execution, delivery and performance of Seller this Agreement or the consummation of the Merger or any of its Subsidiariesthe other transactions contemplated hereby. Immediately following the Effective Time, or any each Material Contract will continue to be in full force and effect, and valid, binding and enforceable against the Surviving Corporation and each other party thereto in accordance with its terms, subject to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had Bankruptcy Laws and would not reasonably be expected to have a Material Adverse EffectEquitable Principles.
Appears in 1 contract
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter SCHEDULE 5.21 contains a complete and accurate list of all contracts (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that listswritten or oral), organized according to each subsection of this Section 4.12(a) which applies to such Contractundertakings, of each commitments or agreements of the following Transferred Contracts (other than Real Property Leases, Benefit Plans categories to which any of Parent and its Subsidiaries is a party or Employment Agreements) by which any of them or their assets is bound (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”"PARENT CONTRACTS"):
(i) Parent Contracts requiring annual expenditures by or liabilities of any Contract of Parent and its Subsidiaries in excess of $50,000 that is required by its terms have a remaining term in excess of 30 days or is currently expected to result in the payment are not cancelable (without material penalty, cost or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceliability) within 30 days;
(ii) any Contract entered into with (x) an Affiliatepromissory notes, officer loans, agreements, indentures, evidences of indebtedness or director other instruments relating to the lending of Seller money, whether as borrower, lender or any guarantor, in excess of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;$50,000.
(iii) Parent Contracts containing covenants limiting the freedom of any Contract that restricts the Business from competing with any Person or engaging of Parent and its Subsidiaries to engage in any line of business (other than prohibitions against engaging in business relating to specific product lines) or activity compete with any person, in any geographic region in which the Business operatesproduct line or line of business, other than or operate at any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholelocation;
(iv) any Contract entered into with the customers joint venture or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter partnership agreements or joint development or similar agreements pursuant to which the Business any third party has granted exclusive rights been entitled or is reasonably expected to such Personbe entitled to share in profits or losses of any of Parent and its Subsidiaries;
(v) all Parent Contracts pursuant to with any federal, state or local government which Sellerhave a remaining term in excess of one year or are not cancelable (without material penalty, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure cost or other internal purposes and (Dliability) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per within one year) (each, an “IP License”);
(vi) other Parent Contracts or commitment in which any joint ventureof Parent and its Subsidiaries has granted manufacturing rights or exclusive marketing rights relating to any product or service, limited liability company any group of products or partnership Contract with services or any third-party involving a sharing of profits, revenue or expenses;territory; and
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business as of the obligations date hereof any other Parent Contract the performance of which could be reasonably expected to require expenditures by any Person in respect of any Liability of such Person, including letters of credit Parent and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures its Subsidiaries in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business50,000.
(b) Section 4.12(b) Each of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) Parent Contracts is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of Parent and its Subsidiaries, enforceable against such Person in accordance with its terms to the extent a party thereto and, to Seller’s KnowledgeParent's knowledge without any investigation, each the other party parties thereto, enforceable against the applicable Parent and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term its Subsidiaries in accordance with its terms.
(e) Neither Seller nor any , except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization, arrangement or similar laws affecting creditors' rights generally and by general principles of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Sellerequity. Except as set forth on SCHEDULE 5.21, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without which would, on notice or lapse of time or both), entitle the holder of any indebtedness issued pursuant to a breach Parent Contract to accelerate, or that does accelerate, the maturity of any such indebtedness.
(c) None of Parent and its Subsidiaries is in breach, default on or violation (and no event has occurred or not occurred through Parent's or its Subsidiaries' action or inaction or through the part action or inaction of Seller any third parties, which with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of any Parent Contract to which any of Parent or its Subsidiaries is now a party or by which any of them or any of its Subsidiariestheir respective properties or assets may be bound, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, except for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectviolations set forth on SCHEDULE 5.21.
Appears in 1 contract
Samples: Merger Agreement (Quepasa Com Inc)
Contracts. (a) Section 4.12(a3.17(a) of the Seller Disclosure Letter Schedule (with paragraph ------------------------------------------ references corresponding to those set forth below) contains a true and complete list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts or other arrangements (other than Real Property Leasestrue and complete copies or, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) if none, reasonably complete and accurate written descriptions of the Seller Disclosure Letter which, together with contracts all amendments and supplements thereto and all waivers of the type described in subclauses (i)-(xiii) entered into after the date hereof and any terms thereof, have been delivered or made available to AAC prior to the Closing Date are collectively referred execution of this Agreement), to herein as which the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller Company or any of its Subsidiaries is a party or by which any of any Transferred Entity their respective Assets and Properties is bound:
(A) all written Contracts (excluding Benefit Plans) providing for employment, all material oral contracts providing for a commitment of employment or material contracts, whether written or oral, providing for consultation services, in each case for a specified or unspecified term, the name, position and rate of compensation of each Person party to such a Contract and the expiration date of each such Contract; and (yB) any entity controlled by an officer written or director of Seller unwritten representations, commitments or agreements obligating the Company or 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 transactions contemplated hereby or by the Transaction Documents or to any employee who is disclosed on Section 3.14 of the Disclosure Schedule, other than with respect to --------------------------------------- salary or incentive compensation payments in the Ordinary Course of Business.
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any of its Subsidiaries to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Transferred EntityPerson to compete with the Company or any of its Subsidiaries;
(iii) any Contract that restricts the Business from competing all partnership, joint venture, shareholders' or other similar Contracts with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholePerson;
(iv) any Contract entered into with the customers or suppliers all Contracts relating to Indebtedness of the Business listed on Section 4.17 Company and 4.18 its Subsidiaries in excess of $50,000 (other than Indebtedness between the Company and any Subsidiary of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such PersonCompany);
(v) all Contracts pursuant with independent contractors, distributors, dealers, manufacturers' representatives, sales agencies or franchisees which involve the payment or potential payment by or to which Sellerthe Company or any Subsidiary thereof of more than $50,000;
(vi) all guarantees of any Indebtedness or other obligations of the Company, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expensesPerson;
(vii) any Contract evidencing an outstanding loan, advance all material Contracts relating to (A) the future disposition or investment by the Business to or in any Person, or guarantee by the Business of the obligations acquisition of any Person in respect of any Liability of such Person, including letters of credit Assets and surety bonds, Properties other than Contracts that will be terminated pursuant to dispositions or acquisitions in the Ordinary Course of Business and in accordance with Section 6.07(b)the provisions of this Agreement and the Transaction Documents, and (B) any Business Combination;
(viii) all Contracts between or among the Company or its Subsidiaries, on the one hand, and any Contract current or former officer, director, shareholder or Affiliate of the Company, its Subsidiaries or any Affiliate of any such officer, director, shareholder or Affiliate, on the other hand, other than contracts disclosed pursuant to make capital expenditures in excess of $1,000,000Section 3.17(a)(i);
(ix) any Contract providing for the grant to any third-party of any right of first refusal all collective bargaining or other similar rights to purchase any of the Business’ assets, properties or businesseslabor Contracts;
(x) any Contract entered into with all Contracts that (A) limit or contain restrictions on the customers or suppliers ability of the Company or 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, to change the lines of business in which it participates or engages or to engage in any Business listed on Section 4.17 and 4.18 Combination (B) require the Company or its Subsidiaries to maintain specified financial ratios or levels of net worth or other indicia of financial condition or (C) require the Seller Disclosure Letter and containing any requirement Company or its Subsidiaries to grant “most favored nation” pricing maintain insurance in certain amounts or terms in favor of such Personwith certain coverages;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000confidentiality agreements;
(xii) any Contracts entered into with the customers or suppliers powers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;attorney; and
(xiii) any Contract which involves all other Contracts that (A) involve the salepayment or potential payment, transfer or acquisition pursuant to the terms of any business such Contract, by or to the Company or by any third party that was entered into since May 21, 2015 its Subsidiaries of more than $50,000 and that contains all powers of attorney and comparable delegations of authority and (B) cannot be terminated within forty-five (45) days after giving notice of termination without resulting in any material continuing obligations of Seller cost or penalty to the Company or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessSubsidiary.
(b) Each Contract required to be disclosed in Section 4.12(b3.17(a) of the Seller ---------------------- Disclosure Letter sets forth a complete Schedule is in full force and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business effect and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is constitutes a legal, valid ------------------- and binding obligation of Seller or one of its Subsidiariesagreement, enforceable against such Person in accordance with its terms terms, of the Company or the applicable Subsidiary, and, to Seller’s Knowledgethe knowledge of the Parent and the Company, each other party thereto, and is in full force and subject to the effect subject in all cases to of applicable bankruptcy, insolvencyinsolvency and other similar laws affecting the enforcement of creditors' rights generally, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered applied in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, law or in full force equity; and effect that, individually or except as disclosed in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and includingSection ------- 3.17(b) the date of this Agreement.
(d) As of the date hereofDisclosure Schedule neither the Parent nor the Company nor any of ---------------------------------- the Company's Subsidiaries, none nor, to the knowledge of Seller, any Subsidiary of Seller, or to Seller’s Knowledgethe Parent and the Company, any other party to any Material such Contract is, nor has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contractreceived notice that it is, in each case other than any termination at the end violation or breach of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material such Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach (or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or 35 lapse of time or both), a would be in violation or breach of or default under any such Contract) which violation, breach or default on is material to the part Business or Condition of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectCompany.
Appears in 1 contract
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of Except for this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct listAgreement, as of the date hereof, none of the Company or any of its Subsidiaries is a party to or bound by (each such Contract, a "Material Contract"): (i) any Contract that would be required to be filed by the Company as a "material contract" pursuant to which Seller Item 601(b)(10) of Regulation S-K under the Securities Act (in each case, other than a Benefit Plan); (ii) any Contract containing covenants binding upon the Company or any of its Subsidiaries that materially restricts the ability of the Company or any of its Subsidiaries to compete in any business or in any geographic area that is material to the Company and its Subsidiaries, taken as a whole, as of the date hereof except for any such Contract that may be canceled without material penalty by the Company or any of its Subsidiaries upon notice of seventy-five (75) days or less; (iii) any Contract with respect to a material joint venture or material partnership agreement; (iv) any Contract providing for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $5,000,000, other than any Indebtedness between or among any of the Company and any of its wholly-owned Subsidiaries; (v) any Contract limiting or prohibiting the payment of dividends or distributions in respect of the capital stock or other equity securities of the Company or 25 any of its Subsidiaries, prohibiting the pledging of any capital stock or other equity securities of the Company or any of its Subsidiaries or prohibiting the issuance of guarantees by the Company or any of its Subsidiaries (other than a Transferred Entitypursuant to applicable Law or Order) is a party except for any such Contract that is used may be canceled without material penalty by the Company or held for use in, but not exclusively, any of its Subsidiaries upon notice of seventy-five (75) days or that arises out of, but not exclusively, the Business and less; (vi) any Contract pursuant to which the Business obtains Company (A) licenses any material services, assets or benefits Intellectual Property from any non-Affiliated Person (other than licenses for open source or off-the-shelf software pursuant to "click-wrap" or "shrink-wrap" agreements), or (B) licenses any material Intellectual Property to any non-Affiliated Person; (vii) any Contract the Overhead principal purpose of which is to indemnify any current or former stockholder of the Company in respect of any potential Tax liabilities; (viii) any collective bargaining agreement; (ix) any Top 10 Program Reinsurance Contract; or (x) any Contract relating to an acquisition, divestiture, merger or similar transaction and Shared Serviceswhich contains representations, the Seller Policies covenants, indemnities or other obligations (including indemnification, "earn-out" or other contingent obligations) that are still in effect (other than this Agreement and those Contracts entered into confidentiality agreements in connection withwith any potential acquisition, as contemplated by divestiture, merger or otherwise related similar transaction). (b) Each of the Material Contracts and each of the Contracts with a Top 10 Program Counterparty is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Overhead Knowledge of the Company as of the date of this Agreement, each other party thereto and Shared Services is in full force and effect, except for such failures to be valid and binding or Business Benefit Plans (to be in full force and effect which would not, individually or in the “Shared Contracts”).
aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no default under any Material Contract or any Contract with a Top 10 Program Counterparty by the Company or any of its Subsidiaries 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, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (c) Except for terminations in accordance with Section 4.10(c) of the terms Company Disclosure Letter sets forth a list as of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation hereof of Seller all material Contracts between the Company or one of its Subsidiaries, enforceable against such Person in accordance with on the one hand, and CUMIS, on the other hand (each, a "CUMIS Material Contract"). Each CUMIS Material Contract is valid and binding on the Company and each of its terms Subsidiaries party thereto and, to Seller’s Knowledgethe Knowledge of the Company as of the date of this Agreement, each other party theretoCUMIS, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Laweffect, except for such failures to be a legal, valid and binding obligation, enforceable, or to be in full force and effect that, individually or in the aggregate, have not had and that would not reasonably be expected to have a Company Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, There is no default under any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any CUMIS Material Contract has exercised any termination rights by the Company or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or the lapse of time or both), the giving of notice or both would constitute a breach or default on thereunder by the part of Seller Company or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each casecase except as would not, for any such breach, default, event or condition that 26 individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement
Contracts. Schedule 2.15 sets forth a list of all contracts to which Seller is a party or by which any of them is bound or to which Seller is subject, except (a) Section 4.12(aany contract that does not require payment by any party thereto of more than $50,000.00 in any period of 12 consecutive months and is not otherwise material to Seller or the Business, (b) any contract that is terminable by Seller upon 90 days' notice or less without the payment of the Seller Disclosure Letter contains a list any material penalty or material termination fee or any other liability of Seller, (orc) any contract entered into, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining termClosing, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller Buyer or any of its Subsidiaries or of Affiliates in connection with any Transferred Entity or transaction contemplated by this Agreement, and (yd) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging contract listed in any line of business or activity in any geographic region in which other Schedule to this Agreement. Notwithstanding the Business operatesforegoing, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter Schedule 2.15 sets forth a complete and correct listaccurate list of all (i) contracts and other agreements with any former officer or director or any current officer, as director, employee, consultant or shareholder of Seller that have not been terminated or expired pursuant to their respective terms, (ii) joint venture or partnership agreements relating to the date hereofassets, properties or business of each Contract pursuant Seller or by or to which Seller of Seller's assets or properties are bound or subject, (iii) supply or requirements contracts to which Seller is a party, (iv) any agreements to which Seller is a party which restricts it from competing in any lines of business or geographic areas or which prohibits Seller (or Seller's agents or representatives) from soliciting for employment, or from hiring, any person and (v) any contract described in Section 2.21 hereof. As used in this Section 2.15, the word "contract" means and includes every agreement of any kind which is legally enforceable by or against Seller. Except as noted in the reference to a contract on Schedule 2.15, each of the contracts listed on Schedule 2.15 hereto or any of its Subsidiaries (the other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and Schedules hereto is in full force and effect subject in all cases and Seller has not (nor, to applicable bankruptcySeller's knowledge, insolvency, reorganization, moratorium has any other party thereto) committed any breach or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not default thereunder which could reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete True and correct copy copies of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or Contracts required to Seller’s Knowledge, any other party be disclosed on Schedule 2.15 have been delivered to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its termsBuyer.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a5.14(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of lists the following Transferred Contracts that are in effect and to which the Company is a party or to which it, or any of its assets and properties, is bound (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts each such Contract and each Contract required to be listed on in Section 4.12(a5.15(b) of the Seller Disclosure Letter together with contracts Letter, whether or not set forth in such section of the type described in subclauses (i)-(xiii) entered into Disclosure Letter, a “Material Contract”; provided that “Material Contract” shall be deemed to include any Contracts arising after the date hereof and prior to in effect at the time of the Closing Date are collectively referred that if in existence on the date hereof would have been required to herein as be set forth in Section 5.14(a) or Section 5.15(b) of the “Material Contracts”):
Disclosure Letter): (i) employment and consulting Contracts with current and former Company Personnel, and all employee collective bargaining agreements and other Contracts with any Contract that is required by its terms labor union or is currently expected to result in the payment or receipt by the Business other representative of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
Company Personnel; (ii) any Contract entered into with (x) an Affiliate, officer or director Contracts that limit the freedom of Seller the Company or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging Affiliate to compete in any line of business or activity in geographic or therapeutic area or otherwise restricting the research, testing, development, manufacture, use, marketing, distribution, sale, importation or exportation, supply, license or marketing of the products and services that the Company or any geographic region in which Affiliate currently plans to develop, or to make use of any of their Intellectual Property rights; (iii) Contracts containing any “non-solicitation” or “no-hire” provision that restricts the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
Company; (iv) Contracts with or involving (A) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person Affiliate (other than licenses and subscriptions for Software obtained from a third party (Athe Company) on general commercial terms and that continues to be widely available on such commercial terms)of the Company or of any Seller, (B) that is not distributed with any former holder of Company Capital Stock or incorporated any Affiliate (other than the Company) thereof or (C) any current or former Company Personnel or any Affiliate (other than the Company) thereof; (v) Leases of personal property eases providing for lease payments in any Productexcess of $50,000 per year; (vi) Contracts (or substantially related Contracts) for the purchase or sale of products or the furnishing or receipt of services (A) calling for performance over a period of more than one year, (B) requiring or otherwise involving payment by or to the Company of more than an aggregate of $50,000, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in which the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (eachCompany has granted manufacturing rights, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing provisions or terms marketing or distribution rights relating to any products or territory or (D) in favor which the Company has agreed to purchase a minimum quantity of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business has agreed to purchase its total requirements of any product goods or service services exclusively from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiariesa certain party; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.71
Appears in 1 contract
Samples: Share Purchase Agreement (Arcutis Biotherapeutics, Inc.)
Contracts. (a) Section 4.12(a3.9(a) of the Seller Company Disclosure Letter contains Schedule identifies each Contract to which any Acquired Corporation is a list (orparty, or by which it is bound, that constitutes a Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which any Acquired Corporation is a party or Employment Agreements) (the contracts listed on Section 4.12(a) by which it is bound as of the Seller Disclosure Letter together with contracts date of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the this Agreement constitutes a “Material ContractsContract”)::
(i) any Contract that is a settlement, conciliation or similar agreement pursuant to which (A) an Acquired Corporation will be required by its terms after the date of this Agreement to pay any monetary obligations or is currently expected to result in the payment (B) that contains material obligations or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicelimitations on such Acquired Corporation’s conduct;
(ii) any Contract entered into with (x) Contract, including any manufacturing, supply or distribution agreement, that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to any Acquired Corporation in an Affiliateamount having an expected value in excess of $5,000,000 in the fiscal years ending December 31, officer or director of Seller 2017, December 31, 2018 or any fiscal year thereafter, and which cannot be cancelled by such Acquired Corporation without more than ninety (90) days’ notice without payment in excess of its Subsidiaries or $1,000,000 as a result of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitysuch cancellation;
(iii) any Contract that restricts the Business from competing with relating to Indebtedness in excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any Person or engaging in asset) of any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholeAcquired Corporation;
(iv) any Contract entered into with the customers any Person (A) constituting a material joint venture, partnership, collaboration or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter similar profit-sharing arrangement; (B) pursuant to which any Acquired Corporation is or may be required to pay milestones, royalties or other contingent payments based on the Business has granted exclusive research, development, regulatory approval, sale, distribution or commercial manufacture of JCAR017 or JCARH125; or (C) under which any Acquired Corporation grants to any Person any right of first refusal, right of first negotiation or similar rights with respect to any Product or any material Intellectual Property; for purposes of this paragraph (a)(iv), JCAR017 and JCARH125 refer to such Personproducts, including the manufacturing process therefor, as used in clinical trials being conducted by the Company as of the date hereof;
(v) all Contracts any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of any Acquired Corporation (a “Change-of-Control Payment”) or gives another Person a right to receive or elect to receive a Change-of-Control Payment, or terminate or modify in any material respect the terms of a material Contract as a result of a change of control of any Acquired Corporation;
(vi) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(vii) any material Contract pursuant to which Sellerany Acquired Corporation is granted by a third party, its Subsidiaries or any Transferred Entity receives or grants to a third party, a license or other rights to material use Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party any Contract (A) on general commercial terms and that continues to be widely concerning commercially available on such commercial terms), software or other commercially available technology; or (B) that is in which grants of rights to use Intellectual Property are incidental to and not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per yearmaterial to performance under such Contract) (each, an “IP LicenseContract”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract that (A) materially limits the freedom or right of any Acquired Corporation or its Affiliates (or which, following the consummation of the Merger could materially restrict or purports to make capital expenditures materially restrict the ability of the Surviving Corporation or Parent or any of their respective Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business; (B) contains any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation; (C) contains exclusivity obligations or restrictions or otherwise materially limits the freedom or right of any Acquired Corporation or its Affiliates to research, develop, sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(ix) any acquisition or divestiture Contract that contains continuing representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations);
(x) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as with any Governmental Body involving payments to or from any Governmental Body in excess of the date of this Agreement $1,000,000, excluding such contracts with academic or medical centers supported by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Governmental Bodies;
(xii) any Contracts entered into with other Contract that is currently in effect and has been filed (or is required to be filed) by the customers or suppliers Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions Securities Act or that contain minimum purchase requirements;would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xiii) any Contract which involves with any Affiliate, director, executive officer (as such term is defined in the saleExchange Act), transfer Person holding 5% or acquisition more of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or immediate family member of any business to or by of the foregoing, other than any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller Contract with Parent or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessAffiliates.
(b) Section 4.12(b(i) As of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
, the Company has either delivered or made available to Parent or Parent’s Representatives an accurate and complete copy of each Material Contract or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (dXXXXX) As database of the date hereofSEC. (ii) No Acquired Corporation nor, none to the knowledge of Sellerthe Company, the other party is in material breach of, or material default under, any Subsidiary of SellerMaterial Contract and no Acquired Corporation, or to Seller’s Knowledgethe knowledge of the Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract or give the other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent the right to terminate such Material Contract, or modify in each case other than any termination at material respect the end terms of such Material Contract’s term . Each Material Contract is, with respect to the Acquired Corporations and, to the knowledge of the Company, the other party, a valid and binding agreement in full force and effect, enforceable in accordance with its terms.
, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. (eiii) Neither Seller nor Since January 1, 2017, the Acquired Corporations have not received any of its Subsidiaries is in written notice regarding any material violation or breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectsince been cured.
Appears in 1 contract
Contracts. (a) Section 4.12(a3.9(a) of the Seller Company Disclosure Letter contains identifies each Contract to which any Acquired Company is a list (or, party or by which any Acquired Company is bound that constitutes a Specified Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which any Acquired Company is a party or Employment Agreements) (the contracts listed on Section 4.12(a) by which any Acquired Company is bound as of the Seller Disclosure Letter together with contracts date of the type described in subclauses this Agreement (i)-(xiiiexcluding Employee Plans) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the shall constitute a “Material ContractsSpecified Contract”)::
(i) any Contract that is a settlement, conciliation or similar agreement with any Governmental Body (A) pursuant to which an Acquired Company will be required by its terms after the date of this Agreement to pay any material monetary obligations or is currently expected (B) that contains material obligations with respect to, or material limitations on, an Acquired Company’s conduct that such Acquired Company will be required to result in comply with after the payment or receipt by the Business date of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, this Agreement (other than purchase orders entered into in the ordinary course of business consistent with past practicecustomary confidentiality obligations);
(ii) any Contract entered into with (x) an Affiliate, officer materially limiting the freedom or director of Seller or any of its Subsidiaries or right of any Transferred Entity Acquired Company to (A) engage in any line of business or (yB) compete with or solicit any entity controlled by an officer other Person in any location or director line of Seller or any business (other than non-solicitation obligations with respect to the solicitation of non-Acquired Company employees that are not material to the Company and its Subsidiaries or of any Transferred Entitybusiness as currently conducted);
(iii) any Contract that restricts requires or is reasonably expected to require, by its terms, the Business from competing with payment or delivery of cash or other consideration by or to any Person Acquired Company in an amount in excess of $250,000 in the fiscal year ending December 31, 2023 or engaging in any line of business individual fiscal year thereafter and that cannot be canceled by such Acquired Company without penalty or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholefurther payment on ninety (90) days’ (or fewer) notice;
(iv) any Contract entered into with the customers relating to Indebtedness in excess of $250,000 (whether incurred, assumed, guaranteed or suppliers secured by any asset) of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personany Acquired Company;
(v) all Contracts pursuant to which Sellerany Contract with any Person constituting a joint venture, its Subsidiaries strategic alliance or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)similar profit sharing arrangement;
(vi) any joint ventureContract that prohibits the payment of dividends or distributions in respect of the capital stock of an Acquired Company, limited liability company the pledging of the capital stock or partnership Contract with other equity interests of an Acquired Company or the issuance of any third-party involving a sharing of profits, revenue or expensesguaranty by an Acquired Company;
(vii) any Contract evidencing an outstanding loan, advance material In-bound License or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)Out-bound License;
(viii) any Contract relating to make the disposition or acquisition, directly or indirectly (by merger, sale of stock, sale of assets, or otherwise), by any Acquired Company after the date of this Agreement of assets or capital expenditures stock or other equity interests of any Person, in each case with a fair market value in excess of $1,000,000250,000;
(ix) any Contract providing for the grant indemnification or any guaranty that is material to any third-party Acquired Company, other than (A) any guaranty by any Acquired Company of any right of first refusal or other similar rights to purchase any of the Business’ assetsobligations pursuant to a customer Contract that was entered into in the ordinary course of business, properties or businesses(B) any Contract providing for indemnification of customers pursuant to Contracts entered into in the ordinary course of business;
(x) any Contract entered into that grants any right of first refusal, right of first offer or similar right with the customers respect to any material assets, rights or suppliers properties of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such PersonAcquired Company;
(xi) any Contract providing that contains any provision that requires the purchase of all of any Acquired Company’s requirements for on-going indemnification obligations as of a given product or service from a given third party, which product or service is material to the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Acquired Company;
(xii) any Contracts entered into Contract that obligates any Acquired Company to conduct business on an exclusive basis or that contains a “most favored nation” or similar covenant with the customers any third party or suppliers upon consummation of the Business listed Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions an exclusive basis or that contain minimum purchase requirementscontains a “most favored nation” or similar covenant with any third party;
(xiii) any Contract which involves with (A) any Affiliate, director, or executive officer (as such term is defined in the saleExchange Act) of the Company, transfer (B) any Person holding 5% or acquisition more of the Shares, or (C) to the knowledge of the Company, any Affiliate (other than any Acquired Company) or immediate family member of any business to Person described in the foregoing clause (A) or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and(B);
(xiv) any Contract (other than purchase orders) with a Company Material Customer or Company Material Supplier;
(xv) any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services Contract that relates to Intellectual Property Rights that is material to the Businessconduct of the Company’s business as currently conducted, except Contracts for off-the-shelf or shrink-wrap software licensed to any Acquired Company;
(xvi) any Contract with an employee or consultant of an Acquired Company (in each case with an annual base salary or payment in excess of $150,000) that provides for retention or transaction payments or cannot be terminated without the payment or provision of severance compensation or benefits or advance notice of termination; and
(xvii) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as As of the date hereofof this Agreement, the Company has delivered or made available to Parent or Parent’s Representatives an accurate and complete copy of each Specified Contract pursuant or has publicly made available a copy of such Specified Contract in EXXXX. Each Specified Contract is, with respect to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party the Acquired Company that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms party thereto and, to Seller’s Knowledgethe knowledge of the Company, with respect to each other party thereto, valid, binding and is in full force and effect subject effect, and enforceable in all cases to applicable accordance with its terms, except insofar as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other Laws similar laws of general applicability relating to or affecting creditors’ rights generally rights, or (ii) general equitable principles. With respect to each Specified Contract, no Acquired Company nor, to the knowledge of the Company, any other party thereto (x) is in breach of, or default under, such Specified Contract, or (y) has taken any action that (or failed to take any action, which failure), with or without notice, lapse of time or both, would constitute a breach of, or a default under, such Specified Contract, in each case of the foregoing clauses (x) and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law(y), except for such failures to as would not reasonably be a legal, valid and binding obligation, enforceable, or in full force and effect thatexpected, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Conformis Inc)
Contracts. (a) Section 4.12(a4.10(a) of the Seller Company Disclosure Letter contains identifies each Contract to which the Company or the Company Subsidiary is a list (orparty, or by which it is bound, that constitutes a Material Contract as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such ContractAgreement. For purposes of this Agreement, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which the Company or Employment Agreements) (the contracts listed on Section 4.12(a) Company Subsidiary is a party or by which it is bound or its assets or properties are bound as of the Seller Disclosure Letter together with contracts date of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the this Agreement constitutes a “Material ContractsContract”)::
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceconstituting a Company Employee Agreement;
(ii) any Contract entered into that is a settlement, conciliation or similar agreement with or approved by any Governmental Body (xA) an Affiliate, officer pursuant to which the Company or director the Company Subsidiary will be required after the date of Seller or this Agreement to pay any of its Subsidiaries or of any Transferred Entity monetary obligations or (yB) any entity controlled by an officer that contains material obligations or director of Seller limitations on the Company’s or any of its Subsidiaries or of any Transferred Entitythe Company Subsidiary’s conduct;
(iii) any Contract (A) that restricts limits the Business from competing with freedom or right of the Company or any Person or engaging Affiliate to engage in any line of business business, to make use of any material Company Intellectual Property or activity to compete with any other Person in any geographic region in which location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Business operatesCompany or any Affiliate, or (C) containing exclusivity obligations or restrictions or otherwise purporting to limit the freedom or right of the Company or any Affiliate to sell, distribute or manufacture any products or services or any technology or other than assets to or for any such restrictions other Person or any arrangement that are not and would not reasonably be expected to be material to the Businessgrants any right of first refusal, taken as a wholefirst offer, first negotiation or similar preferential right;
(iv) any Contract entered into with that requires by its terms or is reasonably likely to require the customers payment or suppliers delivery of cash or other consideration by or to the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries Company or any Transferred Entity receives Affiliate in an amount having an expected value in excess of one hundred thousand dollars ($100,000) in the fiscal year ending December 31, 2018 or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure fiscal year thereafter or other internal purposes and (D) was licensed for fixed payments in excess of less than fifty thousand dollars ($50,000) in the aggregate and which cannot be cancelled by the Company without penalty or annual payments further payment without more than sixty (60) days’ notice;
(v) any Contract relating to Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)the Company or any Affiliate;
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving Person constituting (A) a joint venture or partnership or (B) a collaboration, strategic alliance, research or development project or similar arrangement which requires sharing of future revenues or profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance that by its express terms requires the Company or investment by the Business to or in any PersonCompany Subsidiary, or guarantee by any successor to, or acquirer of, the Business Company or the Company Subsidiary, to make any payment to another Person as a result of a change of control of the obligations of any Company or gives another Person in respect of any Liability of a right to receive or elect to receive a such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)a payment;
(viii) any Contract to make that prohibits the declaration or payment of dividends or distributions in respect of the capital expenditures in excess stock of $1,000,000the Company, the pledging of the capital stock or other equity interests of the Company or the issuance of any guaranty by the Company;
(ix) any Contract providing for the grant to any thirdCompany In-party of any right of first refusal Licenses or other similar rights to purchase any of the Business’ assets, properties or businesses;Company Out-Licenses; and
(x) any Contract entered into with pursuant to which the customers Company or suppliers the Company Subsidiary has continuing obligations involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Business listed on Section 4.17 and 4.18 of Company or the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms Company Subsidiary, in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement each case that cannot be terminated by the Business other Company without penalty without more than in respect of the performance of its obligations under Contracts sixty (60) days’ notice without material payment or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Businesspenalty.
(b) Section 4.12(b) The Company has made available to Parent or its Representatives an accurate and complete copy of each Material Contract. Neither the Company, the Company Subsidiary nor, to the Knowledge of the Seller Disclosure Letter sets forth a complete Company, the other party is in breach of, or default under, any Material Contract and correct listneither the Company, as the Company Subsidiary nor, to the Knowledge of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusivelyCompany, the Business and pursuant other party to which a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a breach of or default under any Material Contract. Each Material Contract is, with respect to the Business obtains any material services, assets or benefits other than the Overhead and Shared ServicesCompany, the Seller Policies and those Contracts entered into in connection withCompany Subsidiary and, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (Knowledge of the “Shared Contracts”).
(c) Except for terminations in accordance with Company, the terms of such Material Contracts after the date hereofother party, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is agreement in full force and effect subject in all cases to applicable bankruptcyeffect, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term enforceable in accordance with its terms.
(e) , except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. Neither Seller the Company nor the Company Subsidiary has received any of its Subsidiaries is in written notice regarding any violation or breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectsince been cured.
Appears in 1 contract
Contracts. (a) Section 4.12(a4.13(a) of the Seller Company Disclosure Letter contains a list (or, lists each Company Contract that is in effect as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection date of this Section 4.12(a) which applies to such Contract, of each Agreement and that as of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) date of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):this Agreement:
(i) is a “material contract” (within the meaning of Item 601(b)(10) of Regulation S-K of the SEC);
(ii) required expenditures by the Company or any Subsidiary thereof in excess of $1,000,000 for (i) the 2016 fiscal year or (ii) is expected to require expenditures by the Company or any Subsidiary thereof in excess of $1,000,000 during 2017 fiscal year and the remaining scheduled term of the Company Contract thereafter;
(iii) resulted in revenues to the Company or any Subsidiary thereof in excess of $2,000,000 (i) for the 2016 fiscal year or (ii) during 2017 fiscal year and the remaining scheduled term of the Company Contract thereafter;
(iv) is (i) an enterprise contract with an expected top twenty-five (25) enterprise customer during the 2017 fiscal year or (ii) is a Company Contract with an expected top ten (10) vendor or supplier during the 2017 fiscal year;
(A) contains any non-compete or exclusivity provisions that restrict the conduct of any line of business by the Company or any Subsidiary of the Company or in any geographic area, (B) contains a right of first refusal, first offer or first negotiation with respect to any asset owned by the Company or its Subsidiaries that is required by material to the Company and its terms Subsidiaries or is currently expected (C) contains any “most favored nation” or similar provision;
(vi) provides for (A) a license or other grant of rights to result in the payment Company or receipt any Subsidiary of the Company from a Third Party of Intellectual Property or Intellectual Property Rights (other than Ordinary Course Inbound Licenses), (B) a license or other grant of rights by the Business Company or any Subsidiary of more the Company to a Third Party of Intellectual Property or Intellectual Property Rights (other than Ordinary Course Outbound Licenses) or (C) the development of any Intellectual Property by a Third Party on behalf of the Company or any Subsidiary of the Company, in each case, which provided for payments to or from the Company or any Subsidiary thereof in excess of $1,000,000 in for the current 2016 fiscal year or in excess of $1,000,000 for the 2017 fiscal year or any one-year period over thereafter;
(vii) is a partnership, joint venture, limited liability company or similar arrangement or agreement relating to the formation, creation, operation, management or control of any partnership or joint venture with a Third Party;
(viii) (A) that is a capital lease obligation of the Company or its remaining termSubsidiaries, or (B) pursuant to which any Indebtedness (other than as described in subclause (A)) of the Company or any Subsidiary of the Company, in each case, in an aggregate principal amount in excess of $2,000,000 is outstanding, other than purchase orders entered into any Company Contract between or among the Company and/or wholly-owned Subsidiaries of the Company;
(ix) provides for a guarantee by the Company or any Subsidiary of the Company of Indebtedness of any Third Party in excess of $2,000,000;
(x) provides for the acquisition or disposition by the Company or any Subsidiaries of the Company of any material properties or assets (except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate), officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries Company or any Transferred Entity receives or grants a license to Subsidiary of the Company has any material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms)indemnification, (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure earn-out or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personcontingent obligations;
(xi) provides for the settlement of any Contract providing for on-going indemnification obligations as material claim against the Company or any Subsidiary of the date of this Agreement by Company pursuant to which the Business other than in respect Company or any Subsidiary of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for Company has any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000existing material obligation;
(xii) any Contracts entered into collective bargaining agreements with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementslabor union;
(xiii) any Contract which involves relates to material indebtedness for borrowed money owed to the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller Company or any of its Subsidiaries; andSubsidiaries other than any Company Contract between or among the Company and/or wholly-owned Subsidiaries of the Company;
(xiv) any is a Fiber Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services that is material to the Businessbusiness of the Company and its Subsidiaries; or
(xv) would prohibit or is reasonably likely to materially delay the consummation of the Merger.
(b) Each Company Contract of the type described in Section 4.12(b4.13(a) and in Section 4.13(c) is referred to herein as a “Company Material Agreement.” Except as set forth in Section 4.13(b) of the Seller Company Disclosure Letter sets forth a complete and correct listLetter, as none of the date hereof, Company Material Agreements contain any “change of control” or similar provisions that may be triggered by the transactions contemplated by this Agreement. Each Company Material Agreement is binding on the Company and/or each Contract pursuant to which Seller or any Subsidiary of its Subsidiaries (other than a Transferred Entity) the Company that is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection withthereto, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereofapplicable, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledgethe Knowledge of the Company, each other party thereto, and is in full force and effect (except that (i) such enforcement may be subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium insolvency or other Laws similar laws, now or hereafter in effect, affecting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equitythe court before which any proceeding therefor may be brought). The Company and/or a Subsidiary of the Company, regardless of whether considered in a proceeding in equity or at Lawas applicable, except for such failures has performed all obligations required to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a performed by it under each Company Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract Agreement and, to the Knowledge of Sellerthe Company, no each other party to any each Company Material Agreement has performed all obligations required to be performed by it under such Company Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or conditionAgreement, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, as has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, none of the Company nor any Subsidiary of the Company has received notice of any material violation or material default under (or any condition which with the passage of time or the giving of notice would cause a material violation of or default under) any Company Material Agreement that has not been cured.
(c) Section 4.13(c) of the Company Disclosure Letter sets forth a summary, as of December 31, 2016, of the remaining monthly recurring revenues and the average contract term through 2022 for Company Contracts relating to the Company’s carrier end-user, transport and FTTC product lines, which summary is true and correct in all material respects. This representation and warranty does not constitute a projection as to future events.
(d) The Company has made available to Parent true and complete copies of each Company Material Agreement.
Appears in 1 contract
Contracts. (a) Section 4.12(aSchedule 3.8(a) sets forth a true and complete list of the following Contracts related to the Business, that are in effect as of the Execution Date, to which any Acquired Company is a party:
(i) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $100,000;
(ii) any contract under which payments by or obligations of any Acquired Company will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section any of the Seller Disclosure Letter transactions contemplated by this Agreement, or under which the value of the payments by or obligations of any Acquired Company will be calculated on the basis of any of the transactions contemplated by this Agreement, whether pursuant to a change in control or otherwise;
(iii) any contract for Program Rights that listsinvolves cash payments or cash receipts in excess of $100,000 over the remaining term of such contract;
(iv) any network affiliation agreement;
(v) any retransmission consent agreement with any MVPD with more than 2,500 subscribers in any of the Station’s Markets;
(vi) any Contract that relates to an ownership interest in any corporation, partnership, joint venture or other business enterprise or other entity, excluding wholly owned subsidiaries of any Acquired Company;
(vii) any Real Property Lease;
(viii) any Contract that relates to the guarantee (whether absolute or contingent) by any Acquired Company of (x) the performance of any other Person (other than a wholly owned subsidiary of any Acquired Company) or (y) the whole or any part of the Indebtedness or liabilities of any other Person (other than a wholly owned subsidiary of any Acquired Company);
(ix) any Contract that contains any power of attorney authorizing the incurrence of an obligation on the part of any Acquired Company;
(x) any Contract that creates any partnership or joint venture or relates to the acquisition, organized according issuance or transfer of any securities;
(xi) any Contract that limits or restricts (x) where any Acquired Company may conduct business, (y) the type or line of business (current or future) in which any Acquired Company may engage or (z) any acquisition of assets or stock (tangible or intangible) by any Acquired Company;
(xii) any Contract that relates to the borrowing or lending of money or other Indebtedness;
(xiii) any Contract that grants any Person an option or a right of first refusal, right of first offer or similar preferential right to purchase or acquire any equity interest in, or assets of, any Acquired Company;
(xiv) any Contract involving the purchase or sale of Real Property that has not closed as of the Execution Date;
(xv) any Contract entered into after January 1, 2013 relating to the acquisition or disposition of any material portion of the Business (whether by merger, sale of stock, sale of assets or otherwise);
(xvi) any Contract involving construction, architecture, engineering or other agreements relating to uncompleted construction projects, in each subsection case that involve payments in excess of $100,000;
(xvii) any Contract involving compensation to any Station Employee, or independent contractor or consultant engaged to perform services to the Business in excess of $50,000 per year (provided, however, that for purposes of this Section 4.12(a3.8(a)(xvii), the term Contract shall not include at-will Contracts or any other Contracts involving compensation to any Station Employee or independent contractor or consultant, in each case that can be terminated upon 30 days’ notice, without penalty or additional payment), other than Seller’s standard severance policy;
(xviii) which applies to such Contractany Contract with any labor union, of each collective bargaining group, works council or association representing any employee of the following Transferred Contracts Acquired Companies;
(xix) any Contract with a Governmental Entity (other than Real Property Leases, Benefit Plans ordinary course Contracts with Governmental Entities as a customer) which imposes any material obligation or Employment Agreementsrestriction on an Acquired Company; and
(xx) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior any Contract relating to the Closing Date use of a Station’s digital bit stream other than in connection with broadcast television services. The contracts, agreements and leases required to be disclosed pursuant to this Section 3.8(a) are collectively referred to herein as the “Material Contracts”):
(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not . True and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers complete copies of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant Material Contracts have been provided to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessBuyer.
(b) Section 4.12(b) Each of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcyand is binding and enforceable upon the Acquired Companies and, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledgeknowledge, any the other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contractparties thereto, subject in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge Enforceability Exceptions. The Acquired Companies have performed their obligations under each of Seller, no other party to any such the Material Contract is Contracts in breach or all material respects and are not in material default thereunder, and to Seller’s Knowledge knowledge, no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received the Material Contracts is in default thereunder in any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectmaterial respect.
Appears in 1 contract
Contracts. (a) Section 4.12(a) of Each written or oral contract entered into by SFC or the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts SFC Subsidiaries (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) customers reasonably entered into after by SFC or SCB in the date hereof Ordinary Course of Business) which involves aggregate payments or receipts in excess of $75,000 per year, including without limitation every employment contract, employee benefit plan, agreement, lease, license, indenture, mortgage and prior other commitment to which either SFC or the Closing Date SFC Subsidiaries are a party or by which SFC or the SFC Subsidiaries or any of their properties may be bound (collectively referred to herein as the “"Material Contracts”):") is identified in Schedule 3.12. Except as disclosed in Schedule 3.12, all Material Contracts are enforceable against SFC or the SFC Subsidiaries, as the case may be and, SFC or the SFC Subsidiaries have in all material respects performed all obligations required to be performed by them to date and are not in default in any material respect and SFC is not aware of any default by a third party under a Material Contract. Schedule 3.12 identifies all Material Contracts which require the consent or approval of third parties to the execution and delivery of this Agreement or to the consummation of the transactions contemplated herein.
(b) Except for the Warrant Agreement and as set forth in Schedule 3.12, as of the date of this Agreement, neither SFC nor the SFC Subsidiaries is a party to, or bound by, any oral or written:
(i) any Contract that material contract" as such term is required by its terms or is currently expected to result defined in the payment or receipt Item 601(b)(10) of Regulation S-K promulgated by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceSEC;
(ii) any Contract entered into with consulting agreement not terminable on thirty (x30) an Affiliatedays or less notice involving the payment of more than $20,000 per annum, officer or director of Seller or any of its Subsidiaries or in the case of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitysuch agreement;
(iii) any Contract that restricts the Business from competing agreement with any Person officer or engaging other key employee the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction of the nature contemplated by this Agreement;
(iv) agreement with respect to any officer providing any term of employment or compensation guarantee extending for a period longer than one year or for a payment in excess of $25,000;
(v) agreement or plan, including any stock option plan, stock appreciation rights plan, employee stock ownership plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(vi) agreement containing covenants that limit its ability to compete in any line of business or activity with any person, or that involve any restriction on the geographic area in any geographic region in which the Business operateswhich, other than any such restrictions that are not and would not reasonably be expected to be material to the Businessor method by which, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed it may carry on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person business (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to as may be widely available on such commercial termsrequired by law or any regulatory agency), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loanagreement, advance contract or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bondsunderstanding, other than Contracts that will be terminated pursuant this Agreement, and the Warrant Agreement, regarding the capital stock of SFC and/or SCB or committing to and in accordance with Section 6.07(b);dispose of some or all of the capital stock or substantially all of the assets of SFC and/or SCB; or
(viii) any Contract to make capital expenditures in excess of $1,000,000;collective bargaining agreement, contract, or other agreement or understanding with a labor union or labor organization.
(ixc) any Contract providing for the grant to any third-party Neither SFC nor SCB is in default under or in violation of any right provision of first refusal any note, bond, indenture, mortgage, deed of trust, loan agreement, lease or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Material Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing respective properties or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Businessassets is subject.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. Schedule 4.13 hereto sets forth a list of all Contracts to which the Company is a party or by which it is bound, except (a) Section 4.12(aany written Contract that does not require payment by any party thereto of more than $100,000, (b) any Contract that is terminable by the Company upon ninety (90) days’ notice or less without the payment of the Seller Disclosure Letter contains a list any material penalty or material termination fee, (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(ac) which applies to such any Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to Closing, with Buyer in connection with any transactions contemplated by this Agreement, (d) any Contract entered into in the Closing Date are collectively referred Ordinary Course of Business after the date hereof and prior to herein as the “Material Contracts”):
Closing, (e) purchase orders for goods and services entered into in the Ordinary Course of Business and (f) any Contract specifically listed in any other Schedule to this Agreement. Schedule 4.13 also sets forth (i) any Contract non-competition agreements or other Contracts that is required by its terms would limit the Company from or is currently expected after the Closing, or would limit or purport to result in limit any Affiliate of the payment Company (including post-Closing Affiliates) from or receipt by after the Business of more than $1,000,000 in the current fiscal year Closing, from competing or engaging in any one-year period over its remaining termbusiness or geographic area, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliatethat would contain, officer impose or director purport to impose most favored nation pricing, grants or requirements of Seller exclusivity or minimum purchase requirements on the Company or any Affiliate of its Subsidiaries the Company (including post-Closing Affiliates of the Company) from or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
after the Closing, (iii) any Contract that restricts the Business from competing with any Person indenture, credit agreement or engaging in any line of business or activity in any geographic region in loan agreement pursuant to which the Business operatesCompany has any Indebtedness for borrowed money (or guarantees thereof) in excess of $100,000, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 Company that guarantees the obligations of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
service providers, vendors, officers, directors, employees, Affiliates or others, (v) all Contracts pursuant to which Sellerwith distributors, its Subsidiaries buying agents or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms)sales agents, (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
all Real Property Leases and (vii) any Contract evidencing an outstanding loaninformation technology and software Contracts, advance excluding commercially available, “off-the-shelf,” or investment by the Business to or in any Person, or guarantee by the Business “shrinkwrap” information technology and software Contracts. Each of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and Schedule 4.13 is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, Company has not had and committed any breach thereof that would not have or reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a2.12(a) of the Seller RTMAC Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of lists the following Transferred Contracts to which RTMAC is a party and which are outstanding (other than Real Property Leases, Benefit Plans or Employment Agreements) (which Section may be updated by the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and Sellers prior to the Closing Date are collectively referred to herein as reflect any additions or deletions thereto after the “Material Contracts”date hereof in compliance with Section 5.01) (collectively, the "RTMAC MATERIAL CONTRACTS"):
(i) any Contract that is required by its terms or is currently expected to result expressly requiring capital expenditures involving consideration in the payment or receipt by the Business excess of more than $1,000,000 in the current fiscal year or 50,000 in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicetwelve month period;
(ii) any Contract which restricts or limits, in any material respect, the ability of RTMAC to freely engage in any aspect of the quick service restaurant business whether as franchisor or owner/operator, or to employ any individuals (other than any confidentiality agreement entered into in connection with (x) an Affiliate, officer a potential acquisition containing any such restriction or director of Seller or limitation to employ any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entityindividuals);
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholecollective bargaining agreement;
(iv) any Contract entered into with the customers which involved payments from RTMAC of more than $250,000 to any Person supplying food or suppliers paper products or distribution services to any of the Business listed on Section 4.17 and 4.18 RTM Parties or any of their Subsidiaries during the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Persontwelve-month period ended May 30, 2004;
(v) all Contracts pursuant any Contract which involved payments from RTMAC of more than $100,000 to which Seller, its Subsidiaries any Person supplying advertising services or marketing services or materials to any of the RTM Parties or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms)of their Subsidiaries during the twelve-month period ended May 30, (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)2004;
(vi) any joint ventureContract which involved payments to RTMAC of more than $100,000 from any Person supplying beverage products to any of the RTM Parties or any of their Subsidiaries during the twelve-month period ended May 30, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses2004;
(vii) any Contract evidencing an outstanding loan, advance or investment by relating to the Business to or in any Person, or guarantee by the Business of the obligations employment of any Person employee, and any Contract pursuant to which RTMAC is or may become obligated to make any severance, termination, bonus or relocation payment or any other payment (other than payments in respect of salary) in excess of $125,000, to any Liability of such Personcurrent or former employee, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)officer or director;
(viii) any Contract which provides for indemnification by RTMAC of (A) any officer, director or employee of any of the RTM Parties or any of their Subsidiaries or (B) any agent of the RTM Parties or any of their Subsidiaries or any other Person that, in the case of this clause (B), has resulted in or would reasonably be expected to make capital expenditures result in, individually or in excess of $1,000,000the aggregate, material Liabilities to RTMAC;
(ix) any Contract providing for the grant relating to any third-party Indebtedness, guarantying the performance of any right of first refusal Person or other similar rights to purchase guarantying any of the Business’ assets, properties or businessesIndebtedness;
(x) any Contract entered into with involving a purchase price of $50,000 or more under which the customers or suppliers closing of the Business listed on Section 4.17 transactions contemplated thereby has not occurred or under which there remains outstanding obligations and 4.18 which relates to the acquisition by RTMAC of any operating business or the Seller Disclosure Letter and containing capital stock or other equity securities of any requirement to grant “most favored nation” pricing other Person, or terms in favor the sale by RTMAC of such Personany operating business or the capital stock or other equity securities of any former Subsidiary of RTMAC;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts partnership or joint venture agreement or other arrangements to which it is Contract involving a party for goods sharing of profits, losses, costs or services furnished by or to it, except for Liabilities with any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000Person;
(xii) any Contracts entered into with Contract under which RTMAC uses or occupies or has the customers right to use or suppliers of occupy any real property (collectively, the Business listed on "RTMAC REAL PROPERTY LEASES") (and Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b2.12(a)(xii) of the Seller RTMAC Disclosure Letter sets forth a true and complete and correct list, as summary of the date hereof, following terms of each Contract pursuant to which Seller or any of its Subsidiaries such RTMAC Real Property Lease:
(other than a Transferred Entity1) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which lessee; (2) the Business obtains any material services, assets or benefits other than unit number; (3) the Overhead and Shared Services, monthly rental rate; (4) the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related monthly operating expenses payable to the Overhead and Shared Services or Business Benefit Plans landlord; (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including5) the monthly rental taxes; (6) the commencement date of this Agreement.
(d) As of and the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.date;
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Triarc Companies Inc)
Contracts. (a) Section 4.12(a) 3.16 of the Seller Company Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of Schedule lists each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior Contractual Obligations to the Closing Date are collectively referred to herein as the “Material Contracts”):which any Acquired Company is bound:
(i) any Contract that is required Contractual Obligation (or group of related Contractual Obligations) valued at over $1,000,000 for the sale of products or services or for the purchase of products or services which will, by its terms or is currently expected to result in the payment or receipt by the Business terms, extend over a period of more than $1,000,000 in one (1) year after the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicedate hereof;
(ii) any Contract entered into with (x) an Affiliate, officer Contractual Obligation pursuant to which a material partnership or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entityjoint venture was established;
(iii) any Contract 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 material Asset of the Acquired Companies 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 valued in excess of $500,000, in each case that restricts is not freely terminable by the Business Acquired Companies on ninety (90) days’ notice;
(iv) any Contractual Obligation under which an Acquired Company has permitted any material 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 $200,000 per year;
(vi) any collective bargaining agreement with any labor union;
(vii) any Contractual Obligation containing covenants that (A) restrict any Acquired Company from competing with any solicitation, hiring or engagement of any Person or engaging the solicitation of any customer or (B) limit the freedom of any Acquired Company or any Affiliate thereof to engage in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract compete with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess outstanding general or special powers of $1,000,000attorney executed by or on behalf of an Acquired Company;
(ix) any Contract providing for the grant to any third-party of any right of first refusal Contractual Obligation under which an Acquired Company has advanced or loaned an amount to, or received a loan, note, or other similar rights instrument, agreement, or arrangement for or relating to purchase the borrowing of money from, any of its Affiliates, members, officers, managers, members of the board of directors, or employees, other than in the Ordinary Course of Business’ assets, properties or businesses;
(x) any Contract entered into with Contractual Obligation (or group of related Contractual Obligations) the customers or suppliers performance of which mandates payment of consideration in excess of $1,000,000 per annum over the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor remaining life of such PersonContractual Obligation, other than (A) any Contractual Obligation that is terminable by an Acquired Company at will without material liability and on less than ninety (90) days’ notice and (B) purchase orders received in the Ordinary Course of Business;
(xi) any Contract providing for on-going indemnification obligations as guaranty by an Acquired Company or any Affiliate of the date any obligation of this Agreement by the Business another, other than in respect the Ordinary Course of the performance Business and in excess of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;; and
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business obligation to purchase its total requirements of register any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract Equity Interests with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessGovernmental Authority.
(b) The Acquired Companies have made available copies of each Contractual Obligation listed on Section 4.12(b) 3.16 of the Seller Company Disclosure Letter sets forth a complete Schedule that are accurate and correct listcomplete, in each case, as amended or otherwise modified and in effect. Each Contractual Obligation required to be disclosed on Section 3.16 of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans Company Disclosure Schedule (the “Shared Disclosed Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases and is enforceable against each party to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse EffectContractual Obligation. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As None of the date hereofAcquired Companies nor, none of Seller, any Subsidiary of Seller, or to Sellerthe Company’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Disclosed Contract is in material breach or default thereunderviolation of, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiariesunder, or has repudiated any other party to such Material provision of, any Disclosed Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Section 4.12(a) of At least forty-eight hours prior to the date hereof, Buyer has delivered or made available to Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, complete and accurate copy of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans to which Buyer or Employment Agreements) any of its Subsidiaries are party or by which any of them or their material assets are bound (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Buyer Material Contracts”):
(i) any Contract that is required by its terms or a “material contract” (as such term is currently expected to result defined in Item 601(b)(10) of Regulation S-K of the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceSEC);
(ii) any Contract entered into with agreement relating to the acquisition or disposition of any business (x) an Affiliatewhether by merger, officer amalgamation, plan of arrangement, sale of stock, sale of assets or director otherwise), material assets or properties or any capital stock or other equity interest of Seller Buyer or its Subsidiaries, in each case under which Buyer or any of its Subsidiaries or of has outstanding any Transferred Entity or material executory indemnification obligations and except for any such Contract that (yA) any entity controlled by an officer or director of Seller or any of is not material to the Buyer and its Subsidiaries or of any Transferred Entityand (B) was entered into in the Ordinary Course;
(iii) any Contract that restricts contains any current restriction on the Business from competing with ability of Buyer or any Person or engaging of its Subsidiaries to compete in any line of the human resources consulting business or activity in any geographic region in which area before or after the Business operates, other than any such restrictions Closing that are not and would not reasonably be expected to be material to have a materially adverse impact on the Business, Company and its Subsidiaries (taken as a whole;) if such restriction was violated; and
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (AContract described in one of the other provisions of this Section 4.13(a) on general commercial terms and that continues without giving effect to any dollar or other limitation contained therein) which, if terminated prior to its current expiration date, would reasonably be expected to be widely available on such commercial termsmaterially adverse to Buyer and its Subsidiaries (taken as a whole); provided, (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Personhowever, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) Buyer Material Contracts shall not include any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the BusinessBuyer Benefit Plans.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Each Buyer Material Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entityi) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one Buyer and/or its Subsidiaries that are party thereto, as the case may be, and to the Knowledge of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s KnowledgeBuyer, each other party thereto, and is in full force and effect subject and (ii) is enforceable against Buyer and/or its Subsidiaries that are party thereto, as the case may be, and to the Knowledge of Buyer is enforceable against each party thereto in all cases to applicable bankruptcyaccordance with the express terms thereof, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles the Bankruptcy and Equity Exception.
(c) There does not exist under any Buyer Material Contract any violation, breach or event of equitydefault, regardless on the part of whether considered in a proceeding in equity Buyer or at Lawany of its Subsidiaries or, to the Knowledge of Buyer, any other party thereto, except for such failures to violations, breaches or events that would not reasonably be a legal, valid and binding obligation, enforceable, or in full force and effect thatexpected, individually or in the aggregate, have not had to be material to Buyer and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, its Subsidiaries (taken as amended, supplemented or otherwise modified through (and including) the date of this Agreementwhole).
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller Buyer nor any of its Subsidiaries is in breach has received any written notice of termination or default under cancellation of any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Buyer Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Korn Ferry International)
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of Schedule 5.8 identifies each of the following Transferred Contracts (other than Real Property LeasesContracts, Benefit Plans and all amendments, restatements, modifications and supplements thereto, to which the Company is a party or Employment Agreements) (the contracts listed on Section 4.12(a) by which any of the Seller Disclosure Letter together with contracts of the type described in subclauses Company Assets is bound (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the each such Contract, whether or not identified on Schedule 5.8, a “Material ContractsContract”):
(i) any Contract that is required by its terms or is currently expected to result in provides for the payment or receipt potential payment by the Business Company of more than $1,000,000 in the current fiscal year or 50,000 in any oneconsecutive 12-year month period or more than $50,000 over its the remaining term, life of such Contract other than purchase orders entered into a Contract that (A) is terminable by any party thereto by giving notice of termination to the other party or parties thereto not more than 90 days in advance of the ordinary course of business consistent with past practiceproposed termination date and (B) even if so terminable, contains no post-termination payment obligations, termination penalties, buy-back obligations or similar obligations;
(ii) any Contract entered into with (x) an Affiliatethat constitutes a purchase order relating to the sale, officer purchase, lease or director provision by the Company of Seller goods or services in excess of $50,000 in any 12-month period, which purchase order has not been paid in full as of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entitythe Closing Date;
(iii) any Contract that restricts whereby the Business from competing with Company grants any Person, or any Person grants the Company, the exclusive right to sell products or engaging in provide services within any line of business or activity in any geographic geographical region in which the Business operates, other than a Contract that (A) is terminable by any such restrictions that are not and would not reasonably be expected to be material party thereto by giving notice of termination to the Businessother party or parties thereto not more than 90 days in advance of the proposed termination date and (B) even if so terminable, taken as a wholecontains no post-termination restrictive covenant obligations, termination penalties, buy-back obligations or similar obligations;
(iv) any Contract entered into with that limits or purports to limit the customers or suppliers freedom of the Business listed on Section 4.17 and 4.18 Company to compete in any line of the Seller Disclosure Letter pursuant business or with any Person or to which the Business has granted exclusive rights to such Personconduct business in any geographic location;
(v) all Contracts pursuant any Contract executed in the five-year period prior to which Seller, its Subsidiaries the date of this Agreement relating to the acquisition or disposition by the Company of the equity or any Transferred Entity receives material portion of the assets of any company or grants a license to material Intellectual Property from any operating business or to any other Interest of another Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms)by asset sale, (B) that is not distributed with stock sale, merger or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”otherwise);
(vi) any joint venture, limited liability company Contract relating to the payment of any Tax or partnership Contract with any third-party involving a sharing the filing of profits, revenue or expensesTax Returns;
(vii) any Contract evidencing an outstanding loan, advance or investment by that was entered into outside of the Business to or in any Person, or guarantee by the Ordinary Course of Business of the obligations of any Person in respect of any Liability of such PersonCompany since December 31, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)2021;
(viii) any Contract to make capital expenditures in excess of $1,000,000constituting a partnership, joint venture or other similar joint ownership and joint liability agreement;
(ix) any Contract providing constituting indebtedness for borrowed money, any Contract creating a capital lease obligation, any Contract for the grant to sale or factoring of Receivables, any third-party Contract constituting a guarantee of debt of any right other Person or any Contract requiring the Company to maintain the financial position of first refusal or any other similar rights to purchase any of the Business’ assets, properties or businessesPerson;
(x) any Contract entered into with under which the customers Company has made advances or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing loans to any requirement to grant “most favored nation” pricing or terms in favor of such other Person;
(xi) any Contract providing for on-going outstanding agreements of guaranty, surety or indemnification obligations as (other than master services agreements entered into in the Ordinary Course of Business of the date of this Agreement Company) direct or indirect, by the Business other than Company, in respect of each case where the performance of its annual obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business (but excluding any contingent obligations for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, unknown amounts) are more than $500,00050,000;
(xii) any Contracts entered into Contract pursuant to which (A) Intellectual Property Rights that are material to the Company Business or involving consideration in excess of $50,000 is licensed to the Company (other than Off-the-Shelf Software) or (B) the Company has granted a right with respect to Intellectual Property Rights that are material to the customers Company Business or suppliers involving consideration in excess of $50,000;
(xiii) each Contract providing for the Business listed on Section 4.17 and 4.18 co-development of the Seller Disclosure Letter that require the Business to purchase its total requirements any intellectual property, including any intellectual property of any product or service from such Person, that contain of the Company (the “take or pay” provisions or that contain minimum purchase requirementsJoint Development Agreements”);
(xiiixiv) (A) any Contract that provides for the purchase or sale of real property since December 31, 2019 or (B) the leases to which involves the sale, transfer or acquisition Leased Equipment is subject (including any master lease covering multiple items of Leased Equipment);
(xv) any Contract providing for the deferred payment of any business purchase price including any “earn out” or other contingent fee arrangement pursuant to which the Company has ongoing payment obligations;
(xvi) any Contract creating a Lien on any of the Company Assets that will not be discharged at or prior to the Closing;
(xvii) any Contract providing for the employment or engagement of any Person on a full-time, part-time, employment, contract, consulting or other basis (other than a Contract that (A) is terminable by any third party that was entered into since May 21thereto by giving notice of termination to the other party or parties thereto not more than 60 days in advance of the proposed termination date and (B) even if so terminable, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; andno post-termination payment obligations);
(xivxviii) any Contract relating to an Affiliate Transaction;
(xix) any Contract with any labor union, labor organization, works council, or similar association or other Person representing or purporting or seeking to represent, any employee leasing of the Company or staffing company by which such employee leasing or staffing company’s employees or contractors provide any other individual who provides services to the BusinessCompany; 18
(xx) any Contract between the Company and any Governmental Authority or any Contract under which the Company is otherwise directly or indirectly providing goods or services to or for use by a Governmental Authority (each a “Government Contract”);
(xxi) any Contract involving interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar derivative or hedging Contracts;
(xxii) any Contract granting to any Person a right of first refusal, first offer or other right to purchase any of the material assets of the Company;
(xxiii) any Contract containing a “most favored nation” clause or similar provision;
(xxiv) any Contract with any professional employer organization, personnel staffing organization, employee leasing organization or other entity that provides personnel services or other similar employment-related or employee benefit-related services to the Company; and
(xxv) any Contract with a Top Supplier or Top Customer.
(b) Section 4.12(bTrue, correct and complete copies (including all amendments, restatements, schedules, exhibits, modifications and supplements) of each written Material Contract have been furnished to Buyer, or, to the Seller Disclosure Letter sets forth extent any of such Material Contracts are oral, Schedule 5.8 contains a complete and correct list, as description of the date hereofmaterial terms thereof. Each Material Contract is in full force and effect, of is valid, binding and enforceable in accordance with its terms, and is not subject to any claims, in each Contract pursuant case, subject to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)Creditors’ Rights.
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each No Material Contract is a legalhas been terminated, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms andneither the Company nor, to the Knowledge of Seller’s Knowledge, each any other party thereto, and Person is in full force and effect subject breach or default thereunder, in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Laweach case, except for such failures to breaches or defaults as would not reasonably be a legal, valid and binding obligation, enforceable, or in full force and effect thatexpected, individually or in the aggregate, have not had and would not reasonably to be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, material to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no Company. No event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time time, or both), would constitute a breach or default on the part of Seller or any the Company or, to the Knowledge of its SubsidiariesSeller, or any other party to such under any Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, except for any such breachbreaches or defaults as would not reasonably be expected, default, event or condition that individually or in the aggregate, to be material to the Company. No counterparty to a Material Contract has asserted or has (except by operation of Legal Requirements) any right to offset, discount or otherwise xxxxx any amount owing under any Material Contract except as expressly set forth in such Material Contract. There are no Material Waivers regarding any Material Contract that have not been disclosed in writing to Buyer.
(d) The Company has not had and would received any written notice, nor does Seller have any Knowledge that, a counterparty to any Material Contract is terminating, not reasonably be expected renewing, modifying, repudiating or rescinding, or intends to have terminate, not renew, modify, repudiate or rescind such Material Contract.
(e) To the Knowledge of Seller, no counterparty to a Material Adverse EffectContract has claimed a force majeure with respect thereto. Since December 31, 2021, there have been no material disputes under any Material Contracts.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KLX Energy Services Holdings, Inc.)
Contracts. (a) Section 4.12(a) 3.11 of the Seller Disclosure Letter contains Schedule lists the following Contracts (including all amendments thereto) to which the Company is a list (or, party or otherwise bound as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) Closing and which applies to such Contract, of each has not been fully performed by the parties thereto as of the following Transferred Contracts Closing (other than Real Property Leasesindemnification, Benefit Plans confidentiality or Employment Agreementssimilar inchoate obligations) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “each, a "Material Contracts”Contract"):
(i) each collective bargaining agreement or other Contract with any Contract labor union;
(ii) each agreement (A) for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting, independent contractor or other basis, (B) that is required by its terms or is currently expected to result in provides for the payment of any cash or receipt by other compensation or benefits as a result of the Business execution of more than this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby or (C) that restricts the ability of the Company to terminate the employment of such Person or such agreement at any time for any lawful reason or for no reason without liability (including severance obligations);
(iii) each loan or credit agreements, promissory notes, bonds, debentures, security agreements, pledge agreements, mortgages, indentures, factoring agreements, guarantees, letters of credit, or similar financing arrangements regarding Indebtedness;
(iv) each Lease;
(v) each agreement or series of related agreements with customers or distributors involving or requiring aggregate payments to the Company over $1,000,000 in the current fiscal year or 50,000 in any one12-year month period over its remaining termbeginning on or after January 1, 2018, other than purchase orders, sales orders or other similar orders with no additional future purchase or sale requirements; 143905334.14
(vi) each agreement or series of related agreements with suppliers and vendors for the purchase or sale of goods or services involving or requiring aggregate payments by the Company over $25,000 in any 12-month period beginning on or after January 1, 2018 which are not cancelable by such Company without penalty on thirty (30) days' or less notice, other than purchase orders, sales orders or other similar orders with no additional future purchase or sale requirements;
(vii) each Government Contract and Government Bid with a transaction value in excess of $25,000, other than purchase orders, sales orders or other similar orders with no additional future purchase or sale requirements;
(viii) each agreement regarding the acquisition or disposition of any assets or securities outside the ordinary course of business, or any equity or debt investment in or any material loan to any Person;
(ix) each agreement relating to capital expenditures or other purchases of equipment in excess of $10,000 individually, or $25,000 in the aggregate;
(x) each limited liability company agreement, partnership agreement, joint venture agreement and other similar Contract (however named) that involves sharing profits or losses by the Company with any other Person;
(xi) each Contract pursuant to which the Company is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property requiring payments in excess of $25,000 per annum;
(xii) each Contract that involves any take-or-pay or requirements arrangement other than in the ordinary course of business;
(xiii) each Contract involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute;
(xiv) each Contract or plan (including any equity incentive plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any capital stock or other equity interests of the Company or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such stock, other securities or options, warrants or other rights therefor;
(xv) each material Contract that (A) limits the freedom of the Company to compete in any line of business or with any Person or in any area (including any agreement that contains any non-competition or non-solicitation provision) or that would so limit the freedom of Purchaser or its Affiliates or the Company after the Closing, (B) contains exclusivity obligations or restrictions binding on the Company or (C) contains most favored nations provisions binding on the Company;
(xvi) each agreement granting a power of attorney or other similar grant of agency; and
(xvii) all other agreements not described in subsections (i) through (xvi) above that involve consideration in excess of $25,000 on an annual basis that was not entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Businessbusiness.
(b) All Material Contracts are in written form unless otherwise set forth in Section 4.12(b) 3.11 of the Seller Disclosure Letter sets forth a complete Schedule. Each Material Contract is in full force and correct listeffect, as of except to the date hereofextent such Material Contract may be affected by Enforceability Exceptions. The Company has performed the obligations currently required to be performed by it under each Material Contract in all material respects. There exists no event, of each Contract pursuant to which Seller occurrence, condition or any of its Subsidiaries act (other than the transactions contemplated by this Agreement) with respect to the Company or, to the Company's Knowledge, with respect to any other contracting party, which, with the giving of notice or the lapse of time, would reasonably be expected to result in (i) a Transferred Entitymaterial default or event of default under any Material Contract by the Company or (ii) is a any third party that is used having the right to accelerate the maturity or held for use inperformance of any obligation of the Company under any Material Contract or to cancel, but terminate or modify any Material Contract. The Company has not exclusivelyreceived any written notice regarding any outstanding violation or breach of, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains default under any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)Material Contract.
(c) Except for terminations in accordance with the terms Complete and accurate copies of such Material Contracts after the date hereof, each Material Contract is a legalContract, valid together with all amendments and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party supplements thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has been made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) prior to the date of this Agreement.
(d) As Except as set forth on Section 3.11(d) of the date hereofDisclosure Schedule, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other the Company is not party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at where the end cost of completion of such Material Contract (excluding any costs related to indemnification, confidentiality or similar inchoate obligations) would reasonably be expected to exceed the balance of monies to be paid by a customer or other Person to the Company under such Contract’s term in accordance with its terms.
(e) Neither Seller Each Government Contract that the Company is a party to and which has not been fully performed by the parties thereto as of the Closing (other than indemnification, confidentiality or similar inchoate obligations), other than purchase orders, sales orders or other similar orders with no additional future purchase or sale requirements, is listed on Section 3.11(e) of the Disclosure Schedule. Except as set forth on Section 3.11(e) of the Disclosure Schedule:
(i) With respect to each Government Contract listed on Section 3.11(e) of the Disclosure Schedule, (A) the Company has complied in all material respects with all terms and conditions and all applicable Laws, (B) neither the United States government nor any prime contractor or subcontractor thereof or other Person has notified the Company in writing that the Company has breached or violated any Law, certification, representation, clause, provision or requirement pertaining to any such Government Contract, (C) the Company has not received any written notice of its Subsidiaries termination for convenience, notice of termination for default, cure notice or show cause notice pertaining to any such Government Contract, (D) all Cost or Pricing Data (as defined in Federal Acquisition Regulation ("FAR") Section 15.401) and other information submitted by the Company or the Company's subcontractors, if any, in 143905334.14 support of such Government Contract, or modification thereto, was, as of the date of price agreement or payment submission, current, accurate and complete in all material respects, (E) to the Company's Knowledge, as of the Closing, other than in the ordinary course of business, no cost incurred by the Company pertaining to any such Government Contract has been questioned or challenged, is the subject of any audit or investigation or has been disallowed by any Governmental Authority and (F) as of the Closing, other than in breach the ordinary course of business, no payments due to the Company pertaining to any such Government Contract has been withheld or default under set off, nor has any Material Contract andwritten claim been made to withhold or set off money, and the Company is entitled to all payments received to date with respect thereto.
(ii) (A) Neither the Company nor, to the Knowledge Company's Knowledge, any officer, director or employee of Sellerthe Company is, no other party or since the Company's incorporation has been, under administrative, civil or criminal investigation, indictment or information by Governmental Authority or under any audit or investigation by the Company with respect to any such Material alleged act or omission arising under or relating to any Government Contract is in breach or default thereunderGovernment Bid, and (B) the Company has not made a voluntary disclosure with respect to Seller’s Knowledge no event any alleged irregularity, mischarging, misstatement, or condition omission arising under or related to any Government Contract or Government Bid that has occurred and is continuing that constitutes led or would constitute be reasonably likely to lead, either before or after the Closing Date, to any of the consequences set forth in clauses (A) or (B) above or any other damage, penalty assessment, recoupment or payment or disallowance of cost.
(iii) Neither the Company, nor to the Company's Knowledge, any officer, director or employee of the Company, has been suspended, proposed for debarment or debarred from participation in the award of any Government Contract or Government Bid with the United States government or without notice any other Governmental Authority (excluding for this purpose ineligibility to bid on certain Government Contracts due to generally applicable bidding requirements). To the Company's Knowledge, there exist no facts or lapse circumstances that would be reasonably likely to result in the institution of time suspension or both), a breach debarment Proceedings or default the finding of non-responsibility or ineligibility on the part of Seller the Company or any of its Subsidiariesofficers, consultants or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectstockholders.
Appears in 1 contract
Contracts. (a) Section 4.12(a) SCHEDULE 5.14 sets forth a complete and accurate list of all contracts to which the Seller is a party or by which the Seller is bound with respect to any of the Seller Disclosure Letter contains a list (orAcquired Assets, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the except contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into in the ordinary course of business after the date hereof and prior to the Closing Date Closing, which will be identified to the Buyer in writing prior to the Closing. As used in this Section 5.14, the word "CONTRACT" means and includes every agreement or understanding of any kind, written or oral, and specifically includes (a) contracts and other agreements with respect to the Acquired Assets with any current or former officer, director, employee, consultant or shareholder or any partnership, corporation, joint venture or any other entity in which any such person has an interest; (b) agreements with any labor union or association representing any employee whose employment duties relate to, or are collectively referred to herein as connected with, the “Material Contracts”):
Business; (ic) any Contract that is required by its terms or is currently expected to result in contracts and other agreements for the payment or receipt provision of services by the Business of more than $1,000,000 Seller related to, or connected with, the Business; (d) bonds or other security agreements provided by any party in the current fiscal year relation to, or in connection with, the Business; (e) contracts and other agreements for the sale of any one-year period over its remaining term, of the Acquired Assets other than purchase orders entered into in the ordinary course of business consistent with past practice;
(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party person of any right of first refusal or other similar preferential rights to purchase any of the Business’ assetsAcquired Assets; (f) joint venture agreements relating to, properties or businesses;
(x) any Contract entered into with connected with, the customers Acquired Assets or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirements;
(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; and
(xiv) any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains or any material servicesof the Acquired Assets are bound or subject; (g) any contracts or other agreements with regard to Indebtedness relating to, assets or benefits other than the Overhead and Shared Servicesconnected with, the Business; or (i) any other contract or other agreement whether or not made in the ordinary course of business. The Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related has delivered to the Overhead Buyer true, correct and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance complete copies of all such contracts, together with the terms of such Material Contracts after the date hereofall modifications and supplements thereto. Unless specifically stated otherwise on SCHEDULE 5.14, each Material Contract is a legal, valid and binding obligation of Seller the contracts listed on SCHEDULE 5.14 hereto or one any of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each the other party thereto, and Schedules hereto is in full force and effect subject effect, the Seller is not in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles breach of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As any of the date hereofprovisions of any such contract, none nor, to the knowledge of the Seller, any Subsidiary of Seller, or to Seller’s Knowledge, is any other party to any Material Contract such contract in default thereunder, nor does any event or condition exist which with notice or the passage of time or both would constitute a default thereunder. The Seller has exercised in all material respects performed all obligations required to be performed by it to date under each such contract. Subject to obtaining any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at necessary consents by the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party or parties to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute contract (with or without notice or lapse the requirement of time or bothany such consent being reflected on SCHEDULE 5.14), a breach no contract includes any provision the effect of which may be to enlarge or default on accelerate any obligations of the part of Seller Buyer to be assumed thereunder or any of its Subsidiaries, or give additional rights to any other party to such Material Contractthereto or will in any other way be affected by, nor has Seller or any of its Subsidiaries received any notice of any such breachterminate or lapse by reason of, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effecttransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bos Better Online Solutions LTD)
Contracts. (a) Section 4.12(a) As of the Seller Disclosure Letter contains a list (orExecution Date, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(aSchedule 7.13(a) which applies to such Contract, of each of sets forth the following Transferred Contracts to which the Company is a party to, or bound by (other than Real Property Leaseseach, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the a “Material ContractsContract”):
(i) any Contract that is required by its terms for the sale, purchase, exchange or is currently expected to result in the payment or receipt other disposition of Hydrocarbons which cannot be terminated by the Business of more Company on not greater than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceninety (90) days’ notice;
(ii) any Contract entered into with evidencing Indebtedness (xother than Indebtedness for which the Company will not be liable at or following Closing) an Affiliate, officer or director granting any Liens over any material asset of Seller or any of its Subsidiaries or of any Transferred Entity or the Company (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entityother than Permitted Encumbrances);
(iii) any Contract that restricts the Business from competing with guaranteeing any Person or engaging in any line obligation of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a wholeanother Person;
(iv) any Contract entered into with that expressly prohibits or materially restricts the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such PersonCompany from competing in any jurisdiction;
(v) all Contracts pursuant any Contract that can reasonably be expected to which Seller, its Subsidiaries result in aggregate payments or receipts of revenue by or on behalf of the Company of more than $1,000,000 during the current or any Transferred Entity receives subsequent fiscal year or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) 5,000,000 in the aggregate over the term of such Contract (in each case, based solely on the terms of such Contract and without regard to any expected increase in volumes or annual payments of less revenues) that cannot be terminated by the Company on not greater than fifty thousand dollars ninety ($50,00090) per year) (eachdays’ notice, an “IP License”)but expressly excluding customary joint operating agreements;
(vi) any participation agreement, joint development agreement, area of mutual interest agreement, joint operating agreement, unitization or communitization agreement, exploration agreement, data license agreement, seismic license agreement, or acreage dedication agreement, partnership agreements (including any tax partnership agreement), joint venture, limited liability company farm-in agreement, farm-out agreement or partnership exchange agreement, or any Contract with similar to the foregoing where, in each case, the Company has any third-party involving a sharing remaining material obligation (including any indemnity obligation owed by the Company) or, to the Company’s Knowledge, the Company (or its assets) are otherwise subject to any material restriction affecting the Company’s ownership, use or operation of profits, revenue or expensesits assets;
(vii) any Contract evidencing an that relates to the acquisition or disposition of any material Oil & Gas Asset, with respect to which the Company has any material outstanding loan, advance rights or investment by the Business obligations (excluding any indemnity obligations owed to or in any Person, or guarantee by from the Business of Company that customarily survive the obligations of any Person in respect of any Liability closing of such Person, including letters of credit transactions and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(bfor which no claim is currently pending);
(viii) any Contract for the marketing, gathering, treatment, processing, storage or transportation of Hydrocarbons, which are not cancelable without penalty or fee to make capital expenditures in excess the Company, its Affiliates, or its or their permitted successors and assigns, on ninety (90) days or less prior written notice, including (A) any Contracts containing any dedications of $1,000,000Oil & Gas Interests (of Hydrocarbons produced from or allocated thereto) for marketing, gathering, treatment, processing, storage or transportation activities or (B) any Contracts that contain any minimum volume, deliver, transportation, processing, production or throughput commitments, including any such Contract that requires the Company to pay a deficiency payment or similar obligation if the Company fails to satisfy such commitment;
(ix) any Contract providing for the grant to containing any third-party area of any right of first refusal mutual interest, most favored nations, or other similar rights to purchase any of the Business’ assets, properties or businessesprovision;
(x) any Contract entered into with which expressly limits or restricts the customers or suppliers ability of the Business listed on Section 4.17 and 4.18 Company to make distributions or declare or pay dividends in respect of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Personits Securities;
(xi) any Contract providing for on-going indemnification obligations as which is between the Company, on the one hand, and any of its respective officers, directors or principals (or any such Person’s Affiliates) or any Person that holds or owns five percent (5%) or more of the date of this Agreement by the Business other than in respect shares of the performance Company’s Securities (or any Affiliates of its obligations under Contracts or any such Person), on the other arrangements to which it is a party for goods or services furnished by or to ithand, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceedemployment, consulting, individual engagement, confidentiality, invention assignment, non-competition agreements or similar agreements entered into in the absence ordinary course of the breach of the Business’ other covenants and agreements under such agreement, $500,000business;
(xii) any Contracts entered into Contract which is a settlement, settlement agreement, or similar agreement with any Governmental Authority involving future performance by the customers or suppliers Company after the date of this Agreement which is material to the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementsCompany;
(xiii) any Contract which involves that is a drilling contract, rig contract or fracturing services contract and would obligate the sale, transfer Company to employ and pay for a drilling rig or acquisition of any business frac fleet with respect to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiaries; andthe Oil & Gas Assets after the Execution Date;
(xiv) any Contract with obligating the Company to drill additional xxxxx after the Closing (excluding general obligations of the Company under any employee leasing Lease to conduct additional development operations);
(xv) any stockholders, investors rights, registration rights or staffing company by similar Contract;
(xvi) any Contract, the primary purpose of which such employee leasing is to provide for the indemnification of another Person;
(xvii) any Contract which is a settlement agreement that settles or staffing company’s employees resolves prior claims, disputes or contractors provide services litigation and that contains unfulfilled obligations on the Company that are material to the BusinessCompany; or
(xviii) any Contract which commits the Company to enter into any of the foregoing.
(b) Section 4.12(b) of the Seller Disclosure Letter sets Except as set forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”on Schedule 7.13(b).
(c) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a listed on Schedule 7.13(a) constitutes the legal, valid and binding obligation of Seller or the Company, on the one of its Subsidiarieshand, enforceable against such Person in accordance with its terms and, to Sellerthe Company’s KnowledgeKnowledge as of the Execution Date, against each other party theretoto the Material Contract, and is in full force and effect subject in all cases to to: (i) applicable bankruptcy, insolvency, reorganization, moratorium or moratorium, and other similar Laws affecting of general application from time to time in effect that affect creditors’ rights generally and subject to generally; (ii) general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid ; and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and includingiii) the date power of this Agreementa court to deny enforcement of remedies generally based upon public policy.
(dc) As of Except as disclosed on Schedule 7.13(c), the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or Company is not in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach violation or default in any material respect under any Material Contract and, to the Company’s Knowledge as of Sellerthe Execution Date, no other party to any such Material Contract Person, is in breach violation or default thereunderin any material respect under any Material Contract.
(d) Except as disclosed on Schedule 7.13(d), as of the Execution Date, all Material Contracts are in full force and effect in all material respects and there are no current written notices received by the Company of the exercise of any premature termination of any Material Contract.
(e) Prior to the Execution Date, true, correct, and complete copies of the Material Contracts (including all amendments, supplements, waivers or modifications thereto) in effect as of the Execution Date have been made available to Seller’s Knowledge no event Buyer.
(f) Schedule 7.13(f) sets forth all Hedge Contracts that were binding upon the Company, its Affiliates or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse the Oil & Gas Assets as of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse EffectEffective Time.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Callon Petroleum Co)
Contracts. (a) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of SCHEDULE 3.19 sets forth the following Transferred categories of Contracts (other than Real Property Leases, Benefit Plans or Employment AgreementsFinancing Documents) (which are material to the contracts listed on Section 4.12(a) Company and the other members of the Seller Disclosure Letter together with contracts Company Group, taken as a whole, which solely relate to the Business and to which the Company or any of the type described other members of the Company Group is a party or by which the Company, any of the other members of the Company Group, or any of their respective assets is in subclauses any way affected or bound, including all material amendments and supplements thereto and modifications thereof (i)-(xiii) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”"MATERIAL CONTRACTS"):
(i) any Contract that (A) involving the obligation of the Company to purchase products or services pursuant to which the aggregate of payments to become due from the Company is required by its terms equal to or is currently expected to result exceeds $750,000 in the payment any calendar year or receipt by the Business of more than $1,000,000 in the current fiscal year aggregate, and which is not terminable on ninety (90) calendar days' or less notice or (B) any Contract which involves the obligation for a payment to be made, or expected to be made, to the Company in excess of $750,000 or pursuant to which payments have been made to the Company during the six months prior to the date hereof in excess of $750,000, either pursuant to a Contract with a customer of the Company or pursuant to any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practiceContract;
(ii) (A) any finder, promotion, sales, advertising, agency, consultant, lobbying, franchise or similar Contract entered into with or (xB) an Affiliateany other Contract, officer or director of Seller or any of its Subsidiaries or in each case, requiring the payment of any Transferred Entity commissions or (y) any entity controlled other similar payments or commitments by an officer or director the Company in excess of Seller or any of its Subsidiaries or of any Transferred Entity$750,000 per calendar year;
(iii) any Contract that restricts the Business from competing with to purchase or otherwise acquire or sell or otherwise dispose of any Person or engaging interest in any line Real Property for consideration in excess of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole$750,000;
(iv) any Contract entered into with the customers or suppliers commitment of the Business listed on Section 4.17 and 4.18 Company to make a capital expenditure or to purchase a capital asset of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Personat least $750,000;
(v) all Contracts pursuant any Contract that contains a covenant not to which Seller, its Subsidiaries compete or any Transferred Entity receives other agreement or grants a license to material Intellectual Property obligation that materially limits or will materially limit the Company and following consummation of the Transactions the Purchaser, from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated engaging in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in related to the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”)Industry;
(vi) any joint ventureLease or similar agreement under which the Company is the lessee, limited liability company or partnership Contract with pursuant to which the Company holds or uses, any third-party involving a sharing machinery, equipment, vehicle or other tangible personal property owned by any third Person for an annual rent in excess of profits, revenue or expenses$250,000;
(vii) any Contract evidencing an outstanding loanestablishing or relating to a partnership, advance joint venture, strategic alliance, vendor financing arrangement or investment by the Business to program or in any Personexclusivity, consortium or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)similar arrangement;
(viii) any Contract asset purchase agreements, stock purchase agreements and other acquisition or divestiture agreements and similar Contracts relating to make capital expenditures the sale, lease or disposal of any material properties or assets of the Company, for consideration in excess of $1,000,000500,000;
(ix) any Contract providing for the grant relating to any third-party Indebtedness in excess of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses$750,000;
(x) any Contract entered into with the customers under which Company has directly or suppliers indirectly guaranteed any liabilities in excess of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person$750,000;
(xi) any outstanding or pending customer bid or proposal or any outstanding customer option relating to any Contract providing for on-going indemnification obligations as in excess of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers Contract containing any "change in control" provision (or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, that contain “take or pay” provisions or that contain minimum purchase requirementssimilar provisions);
(xiii) any Contract relating to any Suit or Governmental Order which involves any unpaid liability of the saleCompany in excess of $750,000;
(A) any employment Contract or (B) any agreement with any executive officer or other key employee of the Company, transfer including such Contracts, the benefits of which are contingent, or acquisition the terms of which are materially altered, upon the occurrence of a transaction involving the Company or of the consummation of the Transactions contemplated by this Agreement, providing any compensation guarantee of more than $100,000 per calendar year;
(xv) any Contract granting a right to first refusal or first negotiation with respect to the sale of any business portion of the equity of the Company or of all or any material portion of Company's assets (including the equity interests in any other member of the Company Group);
(xvi) any Contract under which the Company has agreed to or by indemnify any third party that was entered into since May 21Person with respect to, 2015 and that contains or to share, the Tax liability of any material continuing obligations third Person other than Contracts with suppliers or customers in the ordinary course of Seller business in which no payments on account of Tax liabilities have been made or any of its Subsidiariesincurred or are reasonably expected to be made or incurred; and
(xivxvii) all commitments and agreements to enter into any Contract with any employee leasing or staffing company by which such employee leasing or staffing company’s employees or contractors provide services of the foregoing. For purposes of this Section 3.19(a), all references to the BusinessCompany shall include the Company and any other member of the Company Group unless the context otherwise provides.
(b) Section 4.12(b) of the Seller Disclosure Letter sets Except as set forth a complete and correct liston SCHEDULE 3.19, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”).
(c) Except for terminations in accordance with the terms of such all Material Contracts after the date hereof, each Material Contract is a legal, are legally valid and binding obligation obligations of Seller the Company or one any other member of its Subsidiariesthe Company Group, enforceable against such Person in accordance with its terms as the case may be, and, to the knowledge of the Seller’s Knowledge, each represent valid and binding obligations of the other party respective parties thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or other Laws affecting creditors’ ' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity principles. Except as set forth on SCHEDULE 3.19 and except as would not have or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy , there are no defaults or breaches by the Company or any other member of each written Material Contract, in each casethe Company Group, as amendedthe case may be, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge there are no event defaults or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any breaches by other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectparties thereunder.
Appears in 1 contract
Contracts. (a) Except as set forth in Section 4.12(a) 4.16 of the Seller Disclosure Letter contains a list (orSchedule, as applicableSeller is not party to, contains a cross-reference to another Section of the Seller Disclosure Letter that lists)or bound by, organized according to in each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiii) entered into after the date hereof and prior case Related to the Closing Date are collectively referred to herein as the “Material Contracts”):Business:
(i) any Contract or series of related Contracts for the purchase of materials, supplies, goods, services, equipment or other assets that is required involves annual payments by its terms Seller of $50,000 or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practicemore;
(ii) any Contract entered into with or series of related Contracts for the sale by Seller of (xA) an Affiliatematerials, officer supplies, goods, services, equipment or director other assets, that involves a specified annual minimum dollar sales amount of Seller $50,000 or any of its Subsidiaries or of any Transferred Entity more, or (yB) any entity controlled by an officer or director pursuant to which Seller received payments of Seller or any of its Subsidiaries or of any Transferred Entity;more than $50,000.
(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the requires Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);
(viii) any Contract to make capital expenditures in excess of $1,000,000;
(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;
(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such Person;
(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person, a third party or that contain contains “take or pay” provisions provisions;
(iv) any Contract or series of related Contracts that contain minimum purchase requirements(A) continues n over a period of more than six months from the date hereof or a (B) involves payments to or by Seller exceeding $50,000, other than arrangements disclosed pursuant to the preceding paragraphs (i) and (ii);
(v) any partnership, joint venture or similar Contract;
(vi) any distribution, dealer, representative or sales agency Contract;
(vii) any Lease;
(viii) any Contract for the lease of personal property which provides for payments to or by Seller;
(ix) any Contract which provides for the indemnification by Seller of any Person, the undertaking by Seller to be responsible for consequential damages, or the assumption by Seller of any Tax, environmental or other Liability;
(x) any Contract with any Governmental Entity;
(xi) any note, debenture, bond, equipment trust, letter of credit, loan or other Contract for Indebtedness or lending of money (other than to employees for travel expenses in the ordinary course of the Business) or Contract for a line of credit or guarantee, pledge or undertaking of the Indebtedness of any other Person;
(xii) any Contract for any capital expenditure or leasehold improvement in excess of $50,000;
(xiii) any Contract which involves restrains the sale, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations ability of Seller to engage or compete in any of its Subsidiaries; andmanner or in any business;
(xiv) any Out-Bound License or In-Bound License;
(xv) any Contract relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise);
(xvi) any collective bargaining Contract or other Contract with any employee leasing labor organization, union or staffing company association;
(xvii) that is an employment, consulting, termination or severance Contract other than those that are terminable at-will by which such employee leasing or staffing company’s employees or contractors provide services Seller on less than 30 days’ notice; and
(xviii) any Contract that is otherwise material to the BusinessSeller and not previously disclosed pursuant to this Section 4.16.
(b) Each Contract required to be listed in Section 4.12(b) 4.16 of the Seller Disclosure Letter sets forth a complete Schedule (collectively, the “Material Contracts”) is valid and correct listenforceable in accordance with its terms. Seller party to such Material Contract has complied with and is in compliance in all material respects with, as of and to Seller’s Knowledge, all other parties thereto have complied with and are in compliance with, the date hereof, provisions of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is used or held for use in, but not exclusively, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)Material Contract.
(c) Except for terminations Seller is not, and to Seller’s Knowledge, no other party thereto is, in material default in the performance, observance or fulfillment of any obligation, covenant, condition or other term contained in any Material Contract, and Seller has not given or received notice to or from any Person relating to any such alleged or potential default that has not been cured. No event has occurred which with or without the giving of notice or lapse of time, or both, may conflict with or result in a violation or breach of, or give any Person the right to exercise any remedy under or accelerate the maturity or performance of, or cancel, terminate or modify, any Material Contract.
(d) Seller has delivered accurate and complete copies of each Material Contract to Buyer.
(e) All Contracts other than Material Contracts Related to the Business (collectively, the “Minor Contracts”) are in all material respects valid and enforceable in accordance with the terms of such Material Contracts after the date hereof, each Material Contract their terms. Seller is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms not and, to Seller’s Knowledge, each no other party theretothereto is, in default in the performance, observance or fulfillment of any obligation, covenant or condition contained therein, and is in full force and effect subject in all cases Seller has not given or received notice to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject from any Person relating to general principles of equity, regardless of whether considered in a proceeding in equity any such alleged or at Lawpotential default that has not been cured, except for in either case where such failures default would not and would not reasonably be expected to be a legal, valid and binding obligation, enforceable, or in full force and effect thathave, individually or in the aggregate, have a material adverse effect on the Purchased Assets or the condition (financial or otherwise), operations, prospects or results of operations of the Business or Seller. No event has occurred which with or without the giving of notice or lapse of time, or both, may conflict with or result in a violation or breach of, or give any Person the right to exercise any remedy under or accelerate the maturity or performance of, or cancel, terminate or modify, any Minor Contract, except where such violation, breach, remedy, acceleration, cancellation, termination or modification could not had and would could not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contracthave, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the Purchased Assets or the condition (financial or otherwise), operations, prospects or results of operations of the Business or Seller.
Appears in 1 contract
Contracts. (a) Section 4.12(aSchedule 4.5(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of identifies each of the following Transferred Assigned Contracts (each, an “Assigned Material Contract”) and each Shared Contract (other than Real Property Leaseswith respect to the Contracts described in clauses (ii), Benefit Plans or Employment Agreements(iv), (v), and (vi) (the contracts listed on Section 4.12(abelow) to which any Seller Party is a party as of the Seller Disclosure Letter Agreement Date and which meets the following criteria (such Contracts, together with contracts of the type described in subclauses (i)-(xiii) entered into after Applicable Shared Contracts, the date hereof “Material Shared Contracts”, and prior to the Closing Date are collectively referred to herein as Material Shared Contracts and Assigned Material Contracts, together, the “Material Contracts”):)
(i) a Contract granting most favored customer pricing to any Person, or any Contract providing for the grant of exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or any Contract materially limiting the freedom of such Seller Party to engage in the Business or compete with any Person in connection with such Seller Party’s conduct of the Business, in each case, that (x) apply to any material Purchased Asset or any Purchased Shares or (y) apply to the activities of Buyer or its Subsidiaries after the Closing with respect to the Business and that is required not terminable by Seller or its terms applicable Subsidiary on 90 days’ notice or less without premium or penalty;
(ii) a Contract pursuant to which such Seller Party is currently expected to result a lessor or lessee of any real property or any office furniture, fixtures or other personal property involving payments in the payment or receipt by the Business excess of more than $1,000,000 2,000,000 per annum;
(iii) a Contract granting a Lien upon any Purchased Asset, which Lien secures an obligation in the current fiscal year or in any one-year period over its remaining termexcess of $1,000,000, other than Permitted Liens, or granting a Lien upon any Purchased Shares;
(iv) a Contract for the sale by such Seller Party of Products (other than sales or purchase orders orders, rebate agreements or invoices under such Contracts entered into in the ordinary course of business consistent with past practiceand that do not deviate in any material respect from standard forms made available to Buyer prior to the Agreement Date) to any customer involving payments in excess of $2,000,000 for the most recently completed fiscal year;
(iiv) a Contract for the purchase by such Seller Party of materials, supplies, equipment or services for use in the Business (other than sales or purchase orders, rebate agreements or invoices under such Contracts entered in the ordinary course of business and that do not deviate in any Contract entered into with (x) an Affiliatematerial respect from standard forms made available to Buyer prior to the Agreement Date), officer or director from any supplier involving payments in excess of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity$10,000,000 for the most recently completed fiscal year;
(iiivi) a Contract with (A) any distributor, (B) any of the original equipment manufacturers or (C) any reseller, pursuant to which such third party is authorized to sell or sublicense the Products (collectively, the “Channel Agreements”) involving payments in excess of $2,000,000 for the most recently completed fiscal year;
(vii) a Contract that restricts the Business pursuant to which such Seller Party has licensed from competing with a third party or is authorized by a third party to use any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be Intellectual Property Rights material to the Business, taken as a whole;
(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;
(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses Ordinary Course Inbound Licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”);
(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;
(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b)Channel Agreements;
(viii) any Contract to make capital expenditures in excess partnership, joint venture, or other similar equity investment Contracts that involve a sharing of $1,000,000profits or losses with a third party;
(ix) any Contract providing for requiring any capital commitment or capital expenditures (including any series of related expenditures) related to the grant to any third-party Business in excess of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses$2,000,000;
(x) any Contract entered into with settlement agreement imposing material limitations on the customers or suppliers operation of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing or terms in favor of such PersonBusiness;
(xi) each Contract for the employment of, or receipt of any Contract services from, any Purchased Entity Employee or any other Business Employee on a full-time, part-time, consulting or other basis providing for on-going indemnification an annual base salary in excess of $300,000, and each Contract which provides for a severance, termination, retention or Change of Control Bonus in excess of $100,000 to any Business Employee but excluding any obligations as of the date of this Agreement or entitlements required by the Business applicable Law, by collective bargaining agreement or by Seller Severance Policies;
(xii) each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee or other than Contract in respect of the performance or evidencing any Business Indebtedness in excess of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;
(xiixiii) any Contracts entered into each acquisition, merger, consolidation, recapitalization or similar agreement related to the acquisition by such party of a business or line of business with the customers or suppliers of respect to the Business listed on Section 4.17 in the previous three years for aggregate consideration under such Contract in excess of $25,000,000, other than Contracts in which the applicable transaction has been consummated and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product there are no earnouts, contingent payments, indemnification or service from such Person, that contain “take other obligations ongoing or pay” provisions or that contain minimum purchase requirementsoutstanding;
(xiiixiv) any each inbound Contract for the purchase by a Seller Party of Information Technology (including Software licenses) used in the Business which involves the salepayments in excess of $25,000,000 for Seller’s last completed fiscal year, transfer or acquisition of any business to or by any third party that was entered into since May 21, 2015 and that contains any material continuing obligations of Seller or any of its Subsidiariesother than Ordinary Course Inbound Licenses; and
(xivxv) each Contract under which (A) any Contract with Purchased Entity has directly or indirectly guaranteed any employee leasing liabilities or staffing company by which such employee leasing or staffing company’s employees or contractors provide services to the Business.
(b) Section 4.12(b) obligations of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Purchased Entity) is a party that is used or held for use in), but not exclusivelyincluding any Other Seller, or that arises out of, but not exclusively, the Business and pursuant to which the Business obtains (B) Seller or any material services, assets or benefits of its Subsidiaries (other than the Overhead and Shared Servicesa Purchased Entity), the Seller Policies and those Contracts entered into including any Other Seller, has guaranteed any liabilities or obligations of any Purchased Entity, in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (the “Shared Contracts”)each case in excess of $4,000,000.
(cb) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect thatas would not, individually or in the aggregate, have not had and would not be reasonably be expected to have a be material to the Business: (i) all Material Adverse Effect. Contracts are valid, binding and in full force and effect with respect to, and is enforceable against, each Seller has made available Party that is party thereto and, to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement.
(d) As of the date hereof, none knowledge of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any each other party thereto, subject to any and except as such enforceability may limited by the effect, if any, of applicable bankruptcy and other similar Laws and equitable principles affecting the rights of creditors generally and rules of Law and equitable principles governing specific performance, injunctive relief and other equitable remedies; (ii) none of the Material Contract has exercised any termination rights Contracts have been amended or indicated to modified except as set forth therein; (iii) no Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.
(e) Neither Seller nor any of its Subsidiaries Party is in breach or default in the performance of any of its obligations under any Material Contract and, to the Knowledge knowledge of Seller, as of the Agreement Date, no other party to any such Material Contract is in breach or default thereunder, ; and to Seller’s Knowledge (iv) no event or condition has occurred and is continuing that constitutes or would constitute (exists which, with or without the giving of notice or lapse of time or both), would constitute a breach breach, default or event of default on the part of any Seller or Party under any Material Contract to which it is a party or, to the knowledge of its SubsidiariesSeller, or as of the Agreement Date, any other party thereto. Seller has provided Buyer true, complete and correct copies of all written Material Contracts (other than amendments, addenda, exhibits or schedules thereto that are not material to the Business) or descriptions of the material terms of all oral Material Contracts. With respect to each such Person that is a counterparty to the Material ContractContracts described in clauses (iv), nor has Seller (v) and/or (vi), as of the Agreement Date, (x) there are no outstanding or any of its Subsidiaries received any notice of any threatened disputes or controversies with such breachPerson, defaultother than disputes which would not, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, be reasonably expected to be material to the Business, and (y) such Person has not had and would not reasonably be expected terminated or, to have a Material Adverse Effectthe knowledge of Seller, threatened or stated an intention to terminate in writing, or materially decreased or adversely altered, its relationship with Seller or any Subsidiary of Seller, with respect to the Business or any Purchased Entity or, to the knowledge of Seller, threatened or stated an intention to do any of the foregoing in writing.
Appears in 1 contract
Samples: Purchase Agreement (Symantec Corp)
