Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as of the date hereof, the Debtor or any of its Subsidiaries is a party or by which the Debtor or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”): (A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to which the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases); (B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person; (C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party; (D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person; (E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000; (F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease); (G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and (H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business. (ii) Each Material Contract and each Government Contract is valid and binding on the Debtor or its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor or its Subsidiaries and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material breach of or default thereunder by the Debtor or any of its Subsidiaries or would permit termination, modification or acceleration thereof, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. (iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Alternative Plan Sponsor Agreement, Alternative Plan Sponsor Agreement (Quality Care Properties, Inc.)
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as As of the date hereofof this Agreement and except as otherwise expressly contemplated by this Agreement, neither the Debtor or Company nor any of its Subsidiaries is a party to or by which the Debtor or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”):by:
(A) any Contract (or group individual lease of related Contracts with respect to a single transaction or series of related transactions) pursuant to which the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess annual rentals of $5,000,000 per annum (in each case, other than the Subleases)5 million or more;
(B) any Contract pursuant with any Governmental Entity or any Contract (other than purchase orders entered into the ordinary course of business consistent with past practice) that is reasonably likely to which require either (x) annual payments to or from the Company and its Subsidiaries of more than $5 million or (y) aggregate payments to or from the Company and its Subsidiaries of more than $5 million;
(C) other than with respect to any material Intellectual Property Rights are (1) licensed partnership that is wholly owned by the Company or any Person wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the Debtor formation, creation, operation, management or control of 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 $5 million without regard to percentage voting or economic interest;
(D) any Contract (other than among direct or indirect wholly owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $5 million;
(E) any non-exclusive licenses competition Contract or other Contract that purports to limit either the Debtor type of business in which the Company or its Subsidiaries or, after consummation of the Merger, Parent, Holdco or any of their respective Affiliates may engage or the manner or locations in which any of them may so engage in any business (for the avoidance of doubt, distribution agreements and similar Contracts entered into in the ordinary course of business consistent with past practice shall not be deemed to be “non-competition contracts” provided that such distribution agreements or similar Contracts do not in any way restrict Parent, Holdco or any of their Affiliates after consummation of the Merger);
(F) any Contract containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of the other party or any of its Affiliates;
(G) any Contract with any Affiliate, director or officer of the Company, any Affiliate, director or officer of any Subsidiary of the Company, or any Person beneficially owning five percent or more of the outstanding Shares or of the outstanding shares of any Subsidiary of the Company;
(H) any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for non-customized software any such Contract that is generally available on commercial terms(x) or (2) licensed by not material to the Debtor Company or any of its Subsidiaries to any Personor is a purchase order and (y) entered into in the ordinary course of business consistent with past practice;
(CI) each joint ventureany Contract that contains a put, partnership and other call or similar Contract involving right pursuant to which the sharing of profits of the Debtor Company or any of its Subsidiaries with could be required to purchase or sell, as applicable, any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock equity interests of any enterprise, in each case, in excess Person or assets that have a fair market value or purchase price of more than $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers)5 million; and
(HJ) each any other Contract that provides for indemnification or group of related Contracts that, if terminated or subject to a default by any officerparty thereto, director is, individually or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of businessaggregate, reasonably likely to result in a Company Material Adverse Effect (the Contracts described in clauses (A) — (J), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(ii) Each A copy of each Material Contract has previously been delivered or made available to Parent and each Government Material Contract is a valid and binding on agreement of the Debtor Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in neither the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor or its Subsidiaries and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material breach of or default thereunder by the Debtor or Company nor any of its Subsidiaries or would permit terminationnor, modification or acceleration thereof, in each case except as would not, or would not reasonably be expected to, individually or in to the aggregate, have a Material Adverse Effect. To the Knowledge knowledge of the DebtorCompany, no any other party to thereto is in default or breach in any Material Contract respect under the terms of any such agreement, contract, plan, lease, arrangement or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effectcommitment.
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Merger Agreement (McJunkin Red Man Corp), Merger Agreement (Goldman Sachs Group Inc)
Material Contracts and Government Contracts. (ia) Except for this Agreement and except for the Contracts filed as exhibits to the Company Reports, as of the date of this Agreement, Section 2.1(l)(i(13)(a) of the Debtor Company Disclosure Letter sets forth a true and complete list of each of the following Contracts to which, which the Company or its Subsidiaries is a party to or bound by as of the date hereofof this Agreement:
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the U.S. Securities Act or required to be disclosed pursuant to Item 404 of Regulation S-K under the U.S. Securities Act;
(ii) any Contract that is reasonably likely to require annual payments from the Company and its Subsidiaries of more than $15 million (excluding any Contracts for the purchase of pharmaceutical drugs or other pharmaceutical products);
(iii) any partnership, joint venture, long-term alliance or other similar agreement or arrangement relating to the Debtor formation, creation, operation, management or control of any partnership or joint venture material to the Company and its Subsidiaries (taken as a whole) or in which the Company or any of its Subsidiaries is a party owns any equity interest valued at more than $10 million without regard to percentage voting or by which the Debtor or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”):economic interest;
(Aiv) any Contract (other than solely among direct or group indirect wholly owned Subsidiaries of related Contracts the Company) with respect to a single transaction indebtedness for borrowed money or series of related transactionsseller financing for real property or Intellectual Property Rights (in either case, whether incurred, assumed, guaranteed or secured by any asset) pursuant to which the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases)25 million individually;
(Bv) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor providing for “earn out” or any other similar contingent payment obligations in excess of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed $10 million by the Debtor Company or any of its Subsidiaries to any Person in connection with the acquisition (by merger, consolidation, acquisition of stock or assets or otherwise) of any Person;
(Cvi) each joint venture, partnership any non-competition Contract or other Contract that (x) is material to the Company and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with (taken as a whole) or, to the extent such Contract is not so material, to the Company’s Knowledge, that purports to limit in any third party;
(D) each Contract that expressly limits material respect either the freedom type of business in which the Debtor Company or any of its Subsidiaries (or, after the ClosingEffective Time, ProMedica the Parent or any of its Subsidiaries) to compete may engage or the manner or locations in which any of them may so engage in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtednessbusiness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or extent related to pharmacy benefits management, in a manner materially adverse to the operations of the Company and its Subsidiaries (taken as a whole) (y) is material to the Company and its Subsidiaries (taken as a whole) and could reasonably be expected to require the disposition of any material assets or material line of business of the Company and its Subsidiaries (other than in taken as a whole) or, after the ordinary course Effective Time, of businessthe Parent and its Subsidiaries or (z) or any capital stock of any enterpriseis material to the Company and its Subsidiaries (taken as a whole) and grants “most favored nation” status that, following the Effective Time, would purport to apply to the Parent and its Subsidiaries, including the Company and its Subsidiaries, in each case, in excess a manner materially adverse to the operations of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of the Company and its Subsidiaries pursuant to the Master Lease(taken as a whole);
(Gvii) each any Contract entered into since January 1that is an Intellectual Property Contract;
(viii) any Contract that grants any material right of first refusal or right of first offer or similar right or that limits or purports to limit in any material respect the ability of the Company or any of its Significant Subsidiaries to sell, 2015 related to any settlement transfer, pledge or stipulation otherwise dispose of any action against material assets or businesses of the Debtor Company and its Subsidiaries (taken as a whole);
(ix) any Contract 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 $10 million individually;
(A) excluding those set forth on Section (13)(a)(x)(A) of the Company Disclosure Letter, (B) the top 10 customer Contracts of the Company and its Subsidiaries (taken as a whole) (measured by any other Personthe amount of aggregate gross profit by customer during the 12-month period ending on December 31, other than settlement agreements for cash that do not exceed $1,000,000 individually 2014) (such customers referred to in this subclause (B) being referred to as to any such settlement or stipulation “Significant Customers”);
(excluding xi) the top five Contracts with network pharmacy providers and pharmacy services administrative organizations (“PSAO”) (measured by dollar volume of amounts paid by insurersthe Company and its Subsidiaries (taken as a whole) to providers or $5,000,000 PSAO or PSAO-affiliated providers during the 12-month period ending on December 31, 2014);
(including any amounts paid xii) the most significant Contract with the Company’s and its Subsidiaries’ (taken as a whole) pharmaceutical manufacturers (or aggregators) concerning rebate and administrative fee arrangements and purchase discounts (measured by insurersrebate/administrative fee and purchase discount revenue received by the Company and its Subsidiaries (taken as a whole) during the 12-month period ending on December 31, 2014); and
(Hxiii) each any Contract that provides for indemnification of with any officer, director or employee of the Debtor or Company’s and its Subsidiaries’ (taken as a whole) top five pharmaceutical manufacturers relating to specialty pharmaceutical products (measured by dollar volume of purchases of the Company and/or its Subsidiaries, combined with any of applicable service fees paid to the Company and/or its Subsidiaries other than thereunder during the 12-month period ending on December 31, 2014). (each such Contract described in the ordinary course of businessforegoing clauses (i) through (xiii), together with all side letter exhibits, schedules or annexes to such Contract, is referred to herein as a “Material Contract”).
(iib) Each of the Material Contracts (and each of those Contracts which would be a Material Contract and each Government Contract but for the exception of being filed as exhibits to the Company Reports) is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, and, to the Company’s Knowledge and as of the Debtordate hereof, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, not have or would not reasonably be expected to, individually or in the aggregate, to have a Material Adverse EffectEffect or such Contracts that terminate or are terminated after the execution of this Agreement in accordance with their terms (other than as a result of a breach thereof by the Company or any of its Subsidiaries). There is no material breach of or default under any such Contracts by the Debtor Company or any of its Subsidiaries Subsidiaries, and to the Company’s Knowledge and as of the date hereof, any other party thereto, and no event has occurred that, since the Applicable Date that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or its Subsidiaries, and to the Company’s Knowledge and as of the date hereof, any of its Subsidiaries or would permit termination, modification or acceleration thereofother party thereto, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(iiii) For purposes With respect to each Government Contract, except as would not reasonably be expected to have a Material Adverse Effect: (x) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract of this Agreementthe Company or any of its Subsidiaries since the Applicable Date were complete and correct in all material respects as of their effective date, and the Company and each of its Subsidiaries have complied since the Applicable Date in all material respects with all such representations and certifications; and (y) to the Company’s Knowledge, neither any Governmental Entity nor any prime contractor, subcontractor or other Person has since the Applicable Date notified the Company or any of its Subsidiaries that the Company or any such Subsidiary has breached or violated any material certification, representation, clause, provision or requirement pertaining to such Government Contract.
(ii) Except as would not have or reasonably be expected to have a Material Adverse Effect: (x) to the Company’s Knowledge, neither the Company nor any of its Subsidiaries nor any of their respective personnel is or has since the Applicable Date been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (y) neither the Company nor any of its Subsidiaries has conducted or initiated since the Applicable Date any internal investigation or made a voluntary disclosure to any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract; and (z) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any of their respective officers or directors has since the Applicable Date been suspended or debarred from doing business with any Governmental Entity or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for any Governmental Entity contracting.
Appears in 2 contracts
Samples: Arrangement Agreement (Catamaran Corp), Arrangement Agreement (Unitedhealth Group Inc)
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as of the date hereof, the Debtor or any of its Subsidiaries is a party or by which the Debtor or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”):
(A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to which the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP Parent or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica Parent or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP Parent or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.
(ii) Each Material Contract and each Government Contract is valid and binding on the Debtor or its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor or its Subsidiaries and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material breach of or default thereunder by the Debtor or any of its Subsidiaries or would permit termination, modification or acceleration thereof, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Plan Sponsor Agreement, Plan Sponsor Agreement (Quality Care Properties, Inc.)
Material Contracts and Government Contracts. (ia) Section 2.1(l)(i) of Except as set forth on the Debtor Company Disclosure Letter sets forth a list of each of Schedule and for this Agreement and the following Contracts filed as exhibits to whichthe Company Reports, as of the date hereofof this Agreement, none of the Debtor Company or any of its Subsidiaries is a party to or bound by which any Contract:
(i) that would be required to be filed by the Debtor or any of its Subsidiaries or any of their respective assets is bound (each, Company as a “Material Contract”):
(A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) material contract” pursuant to which Item 601(b)(10) of Regulation S K under the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases)Securities Act;
(Bii) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to containing covenants binding upon the Debtor Company or its Subsidiaries that restrict the ability of the Company or any of its Subsidiaries (other than non-exclusive licenses to or which, following the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits consummation of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits Merger, would materially restrict the freedom ability of the Debtor Surviving Corporation or any of its Subsidiaries (or, after the Closing, ProMedica or any of its SubsidiariesAffiliates) to compete in any line of business or within any geographic area or with any Personthat, following the Merger, would apply to Parent and its Subsidiaries;
(Eiii) involving the payment or receipt of more than $1,000,000 in royalties, advances, profit sharing, commissions, fees or other amounts per year in the aggregate, in each Contract under case calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries;
(iv) with any Affiliate;
(v) containing any standstill or similar agreement pursuant to which the Debtor Company or any of its Subsidiaries has borrowed agreed not to acquire assets or loaned moneysecurities of another Person;
(vi) containing any markdown, commitment or any note, bond, indenture, mortgage or any guarantee agreement for return of such indebtedness, in each case, relating to amounts merchandise in excess of $5,000,000;500,000; or
(Fvii) each Contract entered into in providing for indemnification by the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor Company or any of its Subsidiaries by of any other Person, other than settlement agreements except for cash that do Contracts which are not exceed $1,000,000 individually material to the business as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than a whole and entered into in the ordinary course of businessEach such Contract described in clauses (i) through (vii) is referred to herein as a “Material Contract”.
(iib) Each of the Material Contract Contracts (and each Government Contract those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the SEC Reports) is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, and, to the Knowledge of the DebtorCompany, each other party thereto, and, to the Knowledge of the Debtor, thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor Company or its Subsidiaries and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any of its Subsidiaries or would permit termination, modification or acceleration thereofSubsidiaries, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 2 contracts
Samples: Merger Agreement (Stride Rite Corp), Merger Agreement (Payless Shoesource Inc /De/)
Material Contracts and Government Contracts. (i) As of the date of this Agreement, except as set forth in Section 2.1(l)(i5.1(j)(i) of the Debtor Company Disclosure Letter sets forth Letter, neither the Company nor any of its Subsidiaries is a list party to or bound by:
(A) any lease, rental or occupancy agreement, license, installment or conditional sale agreement or other Contract affecting real or personal property providing for annual payments of each $150,000 or more;
(B) any Contract not terminable without penalty on 60 days notice that requires either (x) annual payments to or from the Company and its Subsidiaries of more than $150,000 or (y) aggregate payments to or from the Company and its Subsidiaries of more than $250,000;
(C) other than with respect to any partnership that is wholly-owned by the Company or any wholly-owned Subsidiary of the following Contracts Company, any partnership, joint venture or other similar agreement or arrangement relating to whichthe formation, as creation, operation, management or control of 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 $50,000 without regard to percentage voting or economic interest;
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the date hereofCompany) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $100,000;
(E) any Contract required to be filed as an exhibit to the Debtor Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, which has not been filed as required;
(F) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, or (III) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(G) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its Affiliates;
(H) any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of their respective assets is bound (each, a “Material Contract”):the outstanding Shares;
(AI) any Contract (that contains a put, call or group of related Contracts with respect to a single transaction or series of related transactions) similar right pursuant to which the Debtor Company or any of its Subsidiaries currently leases could be required to purchase or subleases real or personal property to or from sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $100,000; and
(other than QCP or any J) Each license agreement with respect to license to the Company of its AffiliatesIntellectual Property (as defined in Section 5.1(p)) providing for lease payments the payment of royalties in any year in excess of $5,000,000 per annum 50,000 (in each case, other than excluding licenses by the Subleases);
(B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor Company or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to “off the Master Leaseshelf” software products);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.
(ii) Each A copy of each Contract required to be described in Section 5.1(j)(i) of the Company Disclosure Letter has been made available to Parent. Except to the extent it would not have a Material Contract and Adverse Effect, each Government such Contract is a valid and binding on agreement of the Debtor Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in neither the aggregate, have a Material Adverse Effect. There is no material breach Company nor any of or default under any such Contracts by the Debtor or its Subsidiaries is in default or breach in any respect under the terms of such Contract and to the knowledge of the officers of the Company, no event has occurred thatwhich, with the notice, lapse of time or the giving of notice or both, would constitute a material default or a breach of or default thereunder by the Debtor or any of the Company or its Subsidiaries or would permit termination, modification or acceleration thereof, in by the other party thereunder.
(iii) With respect to each case except Government Contract to which the Company or any Subsidiary is a party:
(A) Except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To , (x) the Knowledge representations and certifications executed or acknowledged in material Governmental Contracts were complete and correct as of their effective date, and the DebtorCompany and each of its Subsidiaries have complied in all material respects with such representations and certifications: (y) neither the United States government nor any prime contractor, no party to any Material Contract subcontractor or any Government Contract other Person has delivered any written notice to notified the Debtor Company or any of its Subsidiaries that it the Company or any such Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract that has not been resolved prior to the date hereof or that remains pending; and (z) no termination for convenience, termination for default, cure notice or show cause notice is terminating such Material Contract or in effect as of the date hereof pertaining to any Government Contract, except .
(B) Except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
, (iiix) For purposes to the knowledge of this Agreementthe officers of the Company, neither the Company nor any of its Subsidiaries is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (y) except in the ordinary course of business, neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government or any agency thereof with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract; and (z) neither the Company nor any of its Subsidiaries nor, to the knowledge of the officers of the Company, any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for United States government contracting.
Appears in 2 contracts
Samples: Merger Agreement (Compex Technologies Inc), Merger Agreement (Encore Medical Corp)
Material Contracts and Government Contracts. (i) As of the date of this Agreement, except as set forth in Section 2.1(l)(i5.2(j)(i) of the Debtor Parent Disclosure Letter sets forth Letter, neither the Parent nor any of its Subsidiaries is a list of each party to or bound by:
(A) other than with respect to any partnership that is wholly-owned by the Parent or any wholly-owned Subsidiary of the following Contracts Parent, any partnership, joint venture or other similar agreement or arrangement relating to whichthe formation, creation, operation, management or control of any partnership or joint venture material to the Parent or any of its Subsidiaries or in which the Parent owns more than a 15% voting or economic interest, or any interest valued at more than $200,000 without regard to percentage voting or economic interest;
(B) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the Parent) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $500,000;
(C) any Contract required to be filed as an exhibit to the Parent’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, which has not been filed as required;
(D) any non-competition Contract or other Contract that could, as a result of the date hereofMerger, require the Debtor disposition of any material assets or line of business of the Parent or its Subsidiaries or, after the Effective Time, Company or its Subsidiaries;
(E) any Contract to which the Parent or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its Affiliates;
(F) any Contract between the Parent or any of its Subsidiaries and any director or officer of the Parent or any Person beneficially owning five percent or more of their respective assets is bound (each, a “Material Contract”):the outstanding Shares; and
(AG) any Contract (that contains a put, call or group of related Contracts with respect to a single transaction or series of related transactions) similar right pursuant to which the Debtor Parent or any of its Subsidiaries currently leases could be required to purchase or subleases real or personal property to or from sell, as applicable, any equity interests of any Person (other or assets that have a fair market value or purchase price of more than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business200,000.
(ii) Each A copy of each Contract required to be described in Section 5.2(j) of the Parent Disclosure Letter has been made available to Company. Except to the extent it would not have a Material Contract and Adverse Effect, each Government such Contract is a valid and binding on agreement of the Debtor Parent or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in neither the aggregate, have a Material Adverse Effect. There is no material breach Parent nor any of or default under any such Contracts by the Debtor or its Subsidiaries is in default or breach in any respect under the terms of such Contract, and to the knowledge of the officers of the Parent, no event has occurred thatwhich, with the notice, lapse of time or the giving of notice or both, would constitute a material default or a breach of or default thereunder by the Debtor or any of the Parent or its Subsidiaries or would permit termination, modification or acceleration thereof, in by the other party thereunder.
(iii) With respect to each case except material Government Contract to which the Parent or any of its Subsidiaries is a party:
(A) Except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To , (x) the Knowledge representations and certifications executed or acknowledged in material Governmental Contracts were complete and correct as of their effective date; (y) neither the DebtorUnited States government nor any prime contractor, no party to any Material Contract subcontractor or any Government Contract other Person has delivered any written notice to notified the Debtor Parent or any of its Subsidiaries that it the Parent or any such Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract that has not been resolved prior to the date hereof or that remains pending; and (z) no termination for convenience, termination for default, cure notice or show cause notice is terminating such Material Contract or in effect as of the date hereof pertaining to any Government Contract, except .
(B) Except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
, (iiix) For purposes to the knowledge of this Agreementthe officers of the Parent, neither the Parent nor any of its Subsidiaries is under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (y) except in the ordinary course of business, neither the Parent nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government or any agency thereof with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract; and (z) neither the Parent nor any of its Subsidiaries nor, to the knowledge of the officers of the Parent, any of their respective officers has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for United States government contracting.
Appears in 2 contracts
Samples: Merger Agreement (Encore Medical Corp), Merger Agreement (Compex Technologies Inc)
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as As of the date hereofof this Agreement, neither the Debtor or Company nor any of its Subsidiaries is a party to or bound by:
(A) any lease of real or personal property providing for annual rentals of $3 million or more;
(B) other than Contracts relating to the purchase of raw materials or the sale of products, in either case in the ordinary course of business or, in the case of contracts in the Company’s Premium Connection Segment, with a term of not more than 180 days, any Contract that is reasonably expected to require either (x) annual payments to or from the Company and its Subsidiaries of more than $10 million or (y) aggregate payments to or from the Company and its Subsidiaries of more than $20 million;
(C) other than with respect to any partnership that is wholly owned by which the Debtor Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”):
(A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to in which the Debtor Company owns more than a 15% voting or economic interest, or any of its Subsidiaries currently leases interest valued at more than $3 million without regard to percentage voting or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third partyeconomic interest;
(D) each any Contract (other than among direct or indirect wholly owned Subsidiaries of the Company) relating to extensions of credit, indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $5 million;
(E) except as set forth or incorporated by reference in the Company Reports filed prior to the date hereof, any Contract required to be 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;
(F) any Contract that expressly (x) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries; (y) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (z) prohibits or limits the freedom right of the Debtor Company or any of its Subsidiaries (or, after giving effect to the ClosingMerger, ProMedica Parent or its Subsidiaries) to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property (as defined in Section 5.1(p)(v)) rights;
(G) any Contract to which the Company or any of its Subsidiaries) Subsidiaries is a party containing a standstill or similar agreement pursuant to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor Company or any of its Subsidiaries has borrowed agreed not to acquire assets or loaned money, or securities of any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000Person;
(FH) each Contract entered into except as set forth or incorporated by reference in the past three Company Reports filed prior to the date hereof, any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares;
(3I) years any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person in connection with the sale by the Company or any of its Subsidiaries of a business or product line;
(J) other than Contracts relating to the acquisition purchase or disposition sale of assets (other than raw materials or the sale of products, in either case in the ordinary course of business) , any Contract that contains a put, call or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries similar right pursuant to which the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor Company or any of its Subsidiaries by could be required to purchase or sell, as applicable, any other Person, other equity interests of any Person or assets that have a fair market value or purchase price of more than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers)5 million; and
(HK) each any other Contract that provides for indemnification or group of related Contracts that, if terminated or subject to a default by any officerparty thereto, director would, individually or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of businessaggregate, reasonably be expected to result in a Material Adverse Effect (the Contracts described in clauses (A) – (K), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(ii) Each A true and complete copy of each Material Contract has previously been made available to Parent and each Government such Contract is a valid and binding on agreement of the Debtor Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in neither the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor or its Subsidiaries and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material breach of or default thereunder by the Debtor or Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or would permit termination, modification or acceleration thereof, breach in each case except as would not, or would not reasonably be expected to, individually or in any material respect under the aggregate, have a Material Adverse Effect. terms of any such Contract.
(iii) To the Knowledge of the DebtorCompany, no party to any Material Contract or any Government Contract has delivered any written notice to neither the Debtor or Company nor any of its Subsidiaries that it is terminating such Material a party to, or bound by, any Contract with any Governmental Entity other than any government-owned exploration and production, pipeline transmission, utility or other energy entity (“Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect”).
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Merger Agreement (Hydril Co)
Material Contracts and Government Contracts. (i) Section 2.1(l)(iExcept for this Agreement and except for any material agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation not otherwise terminable by the other party thereto on 90 days’ or less notice (each, a “Contract”) of filed as exhibits to the Debtor Disclosure Letter sets forth a list of each of the following Contracts to whichCompany Reports, as of the date hereofof this Agreement, none of the Debtor Company or its Subsidiaries is a party to or bound by any Contract:
(A) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) that is reasonably likely to require aggregate payments of royalties or other amounts to or from the Company and its Subsidiaries in 2007 or any subsequent calendar year of more than $750,000, or is reasonably likely to require aggregate payments to or from the Company and its Subsidiaries in any time period of more than $2 million, which, in either case, cannot be cancelled by the Company or any of its Subsidiaries without penalty or further payment or obligation and without more than ninety (90) days’ notice;
(C) that would prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(D) that (i) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries engages or the manner or locations in which any of them so engages in any business, (ii) could require the disposition of any material assets or line of business of the Company or its respective Subsidiaries, (iii) grants “most favored nation” status or (iv) prohibits or limits in any material respect the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights, in each case, which limitation, requirement, grant or prohibition would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole;
(E) to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which the Debtor Company or any Subsidiary has agreed not to acquire assets or securities of the other party or of any of the affiliates of such party;
(F) between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of their respective assets is bound (each, a “Material Contract”):the outstanding Shares;
(AG) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to which providing for indemnification by the Debtor Company or any of its Subsidiaries currently leases of any Person, except for such indemnification provisions as are (x) customary in the Company’s industry or subleases real or personal property incidental to or from any Person (other than QCP or any the routine conduct of its Affiliatesbusiness, (y) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant not reasonably likely to which any be material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica Company or any of its Subsidiaries, taken as a whole and (z) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually business (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurersan “Ordinary Course Indemnity”); and
(H) each Contract that provides for indemnification of any officercontains a put, director call or employee of similar right pursuant to which the Debtor Company or any of its Subsidiaries other 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 $750,000. Each such Contract described in the ordinary course of businessclauses (A) through (H) is referred to herein as a “Material Contract.”
(ii) Each A correct and complete copy of each Material Contract has previously been made available to Parent or publicly filed with the SEC as an exhibit to the Company Reports. Each of the Material Contracts (and each Government Contract those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the SEC Reports) is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, and, to the Knowledge knowledge of the Debtorexecutive officers of the Company, each other party thereto, and, to the Knowledge of the Debtor, thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect effects as would not, or would not reasonably be expected to, individually or in the aggregate, have result in a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor Company or its Subsidiaries and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any of its Subsidiaries or would permit termination, modification or acceleration thereofSubsidiaries, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have result in a Material Adverse Effect. To the Knowledge of the Debtor, no party .
(A) With respect to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or each Government Contract, to the knowledge of the executive officers of the Company and except as would not, or would not reasonably be expected to, individually or in the aggregate, have reasonably be expected to result in a Material Adverse Effect, (x) all representations and certifications executed, acknowledged or set forth in or pertaining to such Governmental Contract on behalf of the Company or any of its Subsidiaries were complete and correct in all material respects as of their effective date, and the Company and each of its Subsidiaries have complied in all material respects with all such representations and certifications; (y) neither a Governmental Entity nor any prime contractor, subcontractor or other Person acting on behalf of a Governmental Entity or a Government Contract has notified the Company or any of its Subsidiaries in writing that the Company or any such Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract; and (z) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract.
(iiiB) For purposes To the knowledge of this Agreementthe executive officers of the Company, (x) neither the Company nor any of its Subsidiaries has received written notice that it or any of its personnel is under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract, (y) neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract and (z) neither the Company nor any of its Subsidiaries nor, to the knowledge of the executive officers of the Company, any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for United States government contracting.
Appears in 1 contract
Samples: Merger Agreement (Genlyte Group Inc)
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as As of the date hereofof this Agreement, neither the Debtor Company nor any of its Subsidiaries is a party to or bound by:
(A) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than a 10% voting or economic interest;
(B) any non-competition Contract or any other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business or (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries), (III) is a Contract that involves payment or receipt by the Company and its Subsidiaries of more than $1 million over the initial term of such Contract or over a 12 month period, whichever is longer, and grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries, or (IV) prohibits or limits the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights;
(C) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its Affiliates;
(D) any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares;
(E) any Contract that contains a put, call or similar right pursuant to which the Company or any of their respective 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 $250,000; and
(F) any Contract that is bound not terminable without liability within one year of the date hereof and involves payment or receipt by the Company and its Subsidiaries of more than $20 million over the entire term of such Contract. Each Contract described in clauses (each, A) — (F) above and each Contract that is filed or would be required to be filed as an exhibit to the Company’s Annual Report on Form 10-K is referred to herein as a “Material Contract”):
(A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to which the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.
(ii) Each A complete copy of each Material Contract has previously been made available to Parent and each Government such Material Contract is a valid and binding on agreement of the Debtor Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor Company or its Subsidiaries and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any its Subsidiaries. There are no Material Contracts pursuant to which consents or waivers are required prior to entering into this Agreement or consummation of its Subsidiaries or would permit terminationthe transactions contemplated by this Agreement.
(A) With respect to each Government Contract (as hereinafter defined), modification or acceleration thereof, in each case except as would is not, or would not reasonably be expected to, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge consummation of the Debtortransactions contemplated by this Agreement, no party (x) all representations and certifications executed, acknowledged or set forth in or pertaining to such Governmental Contract were complete and correct in all material respects as of their effective date, and the Company and each of its Subsidiaries have complied in all material respects with all such representations and certifications; (y) neither the United States government nor any Material Contract prime contractor, subcontractor or any Government Contract other Person has delivered any written notice to notified the Debtor Company or any of its Subsidiaries that it is terminating the Company or any such Material Contract Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract; and (z) no termination for convenience, except termination for default, cure notice or show cause notice is in effect as would not, or would not reasonably be expected to, individually or in of the aggregate, have a Material Adverse Effectdate hereof pertaining to any Government Contract.
(iiiB) For purposes To the knowledge of this Agreementthe Company, neither the Company nor any of its Subsidiaries nor any of their respective personnel is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract. Neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have subject of a finding of non-responsibility or ineligibility for United States government contracting. As used herein, “Government Contract” means any Contract to which the following meanings:Company or any of its Subsidiaries is a party, or by which any of them are bound, the ultimate contracting party of which is a Governmental Entity (including any subcontract with a prime contractor or other subcontractor who is a party to any such Contract).
Appears in 1 contract
Samples: Merger Agreement (Reed Elsevier PLC)
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as As of the date hereofof this Agreement, neither the Debtor or Company nor any of its Subsidiaries is a party to or bound by:
(A) any lease of real or personal property providing for annual rentals of $5 million or more;
(B) other than Contracts relating to the purchase of raw materials or the sale of products, in either case in the ordinary course of business and with a term of not more than 180 days, any Contract that is reasonably expected to require either (x) annual payments to or from the Company and its Subsidiaries of more than $10 million or (y) aggregate payments to or from the Company and its Subsidiaries of more than $20 million;
(C) other than with respect to any partnership that is wholly owned by which the Debtor Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”):
(A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to in which the Debtor Company owns more than a 15% voting or economic interest, or any of its Subsidiaries currently leases interest valued at more than $5 million without regard to percentage voting or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third partyeconomic interest;
(D) each any Contract (other than among direct or indirect wholly owned Subsidiaries of the Company) relating to extensions of credit with interest payable thereon or an express or (other than Contracts relating to the purchase of raw materials or the sale of products, in either case in the ordinary course of business and with a term of not more than 180 days) implied interest component thereon (unless such interest relates solely to late payments) or indebtedness for borrowed money (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $5 million;
(E) except as set forth or incorporated by reference in the Company Reports filed prior to the date hereof, any Contract required to be 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;
(F) any Contract that expressly (x) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries; (y) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (z) prohibits or limits the freedom right of the Debtor Company or any of its Subsidiaries (or, after giving effect to the ClosingMerger, ProMedica Parent or its Subsidiaries) to use, transfer, license, distribute or enforce any of their respective Intellectual Property (as defined in Section 5.1(p)(v)) rights;
(G) any Contract to which the Company or any of its Subsidiaries) Subsidiaries is a party containing a standstill or similar agreement pursuant to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor Company or any of its Subsidiaries has borrowed agreed not to acquire assets or loaned money, or securities of any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000Person;
(FH) each Contract entered into except as set forth or incorporated by reference in the past three Company Reports filed prior to the date hereof, any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares;
(3I) years any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person in connection with the sale by the Company or any of its Subsidiaries of a business or product line;
(J) other than Contracts relating to the acquisition purchase or disposition sale of assets (other than raw materials or the sale of products, in either case in the ordinary course of business) , any Contract that contains a put, call or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries similar right pursuant to which the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor Company or any of its Subsidiaries by could be required to purchase or sell, as applicable, any other Person, other equity interests of any Person or assets that have a fair market value or purchase price of more than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers)5 million; and
(HK) each any other Contract that provides for indemnification or group of related Contracts that, if terminated or subject to a default by any officerparty thereto, director would, individually or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of businessaggregate, reasonably be expected to result in a Company Material Adverse Effect (the Contracts described in clauses (A) – (K), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(ii) Each A true and complete copy of each Material Contract has previously been made available to Parent and each Government such Contract is a valid and binding on agreement of the Debtor Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in neither the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor or its Subsidiaries and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material breach of or default thereunder by the Debtor or Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or would permit termination, modification or acceleration thereof, breach in each case except as would not, or would not reasonably be expected to, individually or in any material respect under the aggregate, have a Material Adverse Effect. terms of any such Contract.
(iii) To the Knowledge of the DebtorCompany, no party to any Material Contract or any Government Contract has delivered any written notice to neither the Debtor or Company nor any of its Subsidiaries that it is terminating such Material a party to, or bound by, any Contract with any Governmental Entity other than any government-owned exploration and production, pipeline transmission, utility or other energy entity (“Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect”).
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 1 contract
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as As of the date hereofof this Agreement, neither the Debtor Company nor any of its Subsidiaries is a party to or bound by:
(A) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than a 10% voting or economic interest;
(B) any non-competition Contract or any other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business or (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries), (III) is a Contract that involves payment or receipt by the Company and its Subsidiaries of more than $1 million over the initial term of such Contract or over a 12 month period, whichever is longer, and grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries, or (IV) prohibits or limits the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights;
(C) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its Affiliates;
(D) any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares;
(E) any Contract that contains a put, call or similar right pursuant to which the Company or any of their respective 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 $250,000; and
(F) any Contract that is bound not terminable without liability within one year of the date hereof and involves payment or receipt by the Company and its Subsidiaries of more than $20 million over the entire term of such Contract. Each Contract described in clauses (each, A) – (F) above and each Contract that is filed or would be required to be filed as an exhibit to the Company’s Annual Report on Form 10-K is referred to herein as a “Material Contract”):
(A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to which the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant to which any material Intellectual Property Rights are (1) licensed by any Person to the Debtor or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.
(ii) Each A complete copy of each Material Contract has previously been made available to Parent and each Government such Material Contract is a valid and binding on agreement of the Debtor Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor Company or its Subsidiaries and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any its Subsidiaries. There are no Material Contracts pursuant to which consents or waivers are required prior to entering into this Agreement or consummation of its Subsidiaries or would permit terminationthe transactions contemplated by this Agreement.
(A) With respect to each Government Contract (as hereinafter defined), modification or acceleration thereof, in each case except as would is not, or would not reasonably be expected to, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge consummation of the Debtortransactions contemplated by this Agreement, no party (x) all representations and certifications executed, acknowledged or set forth in or pertaining to such Governmental Contract were complete and correct in all material respects as of their effective date, and the Company and each of its Subsidiaries have complied in all material respects with all such representations and certifications; (y) neither the United States government nor any Material Contract prime contractor, subcontractor or any Government Contract other Person has delivered any written notice to notified the Debtor Company or any of its Subsidiaries that it is terminating the Company or any such Material Contract Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract; and (z) no termination for convenience, except termination for default, cure notice or show cause notice is in effect as would not, or would not reasonably be expected to, individually or in of the aggregate, have a Material Adverse Effectdate hereof pertaining to any Government Contract.
(iiiB) For purposes To the knowledge of this Agreementthe Company, neither the Company nor any of its Subsidiaries nor any of their respective personnel is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract. Neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have subject of a finding of non-responsibility or ineligibility for United States government contracting. As used herein, “Government Contract” means any Contract to which the following meanings:Company or any of its Subsidiaries is a party, or by which any of them are bound, the ultimate contracting party of which is a Governmental Entity (including any subcontract with a prime contractor or other subcontractor who is a party to any such Contract).
Appears in 1 contract
Samples: Merger Agreement (Choicepoint Inc)
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of Except for this Agreement and except for Contracts filed as exhibits to the Debtor Disclosure Letter sets forth a list of each of the following Contracts to whichCompany Reports, as of the date hereof, none of the Debtor Company or its Subsidiaries is a party to or bound by:
(A) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) except as disclosed on Section 5.1(j)(i)(B) of the Company Disclosure Letter, any Contract containing covenants binding upon the Company or its Subsidiaries that restrict the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its affiliates) to compete in any business or geographic area or which grant “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries;
(C) any Contract involving the payment or receipt of royalties or other amounts of more than $100,000 in the aggregate calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries;
(D) any Contract with any affiliate;
(E) any Contract containing any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person;
(F) any Contract that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer, the Merger or the other Transactions;
(G) other than as disclosed on Section 5.1(j)(i)(G) of the Company Disclosure Letter, any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for the Company’s agreement with Cantor Fxxxxxxxxx, non-material Contracts entered into in the ordinary course of business;
(H) any Contract that was not negotiated and entered into on an arm’s length basis;
(I) any Contract that restricts the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its affiliates) to compete in any business or geographic area or which grant “most favored nation” status that, following the Offer or the Merger, would apply to Parent and its Subsidiaries;
(J) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (III) grants “most favored nation” status that, following the Offer or the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (IV) prohibits or limits the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights;
(K) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its affiliates;
(L) any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of their respective assets is bound (eachthe outstanding Shares, a “Material Contract”):except as disclosed on Section 5.1(j)(i)(L) of the Company Disclosure Letter,;
(AM) any Contract (that contains a put, call or group of related Contracts with respect to a single transaction or series of related transactions) similar right pursuant to which the Debtor Company or any of its Subsidiaries currently leases could be required to purchase or subleases real or personal property to or from sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $100,000 except for Warrants disclosed in the Company Disclosure Letter.
(N) any joint venture Contract, partnership arrangements or other than QCP Contracts involving a sharing with any third party of profits, losses, costs or liabilities by the Company or any of its AffiliatesSubsidiaries; and
(O) providing for lease payments in excess any Contract (x) relating to research or development, clinical studies to gather safety and effectiveness data about a Medical Device to support a premarket application or premarket notification, (y) relating to the sale, supply, licensing, co-promotion, marketing or manufacturing of $5,000,000 per annum any Medical Device, or (z) with any distributor of any Medical Device, in each case, other than the Subleases);
(B) except for any such Contract pursuant to which any material Intellectual Property Rights are that is (1) licensed by any Person not material to the Debtor Company or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or and (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business. Each such Contract described in clauses (A) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually through (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant O) is referred to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually herein as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.a “Material Contract”
(ii) Each of the Material Contract Contracts (and each Government Contract those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the Company Reports) is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, and, to the Knowledge knowledge of the Debtorofficers of the Company, each other party thereto, and, to the Knowledge of the Debtor, thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There To the Company’s knowledge, there is no material breach of or default under any such Contracts by the Debtor Company or its Subsidiaries and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any of its Subsidiaries or would permit termination, modification or acceleration thereofSubsidiaries, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, expect to have a Material Adverse Effect.
(iiiA) For purposes With respect to each Government Contract (as defined below), except as would not reasonably be expected to have a Material Adverse Effect, (x) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract were complete and correct in all material respects as of this Agreementtheir effective date, and the Company and each of its Subsidiaries have complied in all material respects with all such representations and certifications, (y) neither the United States government nor any prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries that the Company or any such Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract; and (z) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract.
(B) Except as would not reasonably be expected to have a Material Adverse Effect, (x) to the knowledge of the officers of the Company, neither the Company nor any of its Subsidiaries nor any of their respective personnel is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (y) neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract; and (z) neither the Company nor any of its Subsidiaries nor, to the knowledge of the officers of the Company, any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for United States government contracting.
Appears in 1 contract
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of the Debtor Disclosure Letter sets forth a list of each of the following Contracts to which, as As of the date hereofof this Agreement, neither the Debtor Company nor any of its Subsidiaries is a party to or bound by:
(A) any lease of real or personal property providing for annual rentals of $100,000 or more;
(B) any Contract (i) that is reasonably likely to require aggregate annual payments to or from the Company and its Subsidiaries of more than $300,000, (ii) that is not entered into in the ordinary course of business with a vendor or customer and is reasonably likely to require annual aggregate payments to or from the Company and its Subsidiaries of more than $100,000 or (iii) that is reasonably likely to require aggregate payments to or from the Company and its Subsidiaries of more than $500,000;
(C) other than with respect to any partnership that is wholly-owned by the Company or any wholly-owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $100,000;
(E) any Contract required to be 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;
(F) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (III) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (IV) prohibits or limits the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights;
(G) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its Affiliates;
(H) any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of their respective assets is bound (each, a “Material Contract”):the outstanding Shares;
(AI) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to which providing for indemnification by the Debtor Company or any of its Subsidiaries currently leases or subleases real or personal property to or from of any Person Person, except for any such Contract that is (other than QCP or any of its Affiliatesx) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant to which any not material Intellectual Property Rights are (1) licensed by any Person to the Debtor Company or any of its Subsidiaries and (other than non-exclusive licenses y) entered into in the ordinary course of business;
(J) any Contract that contains a put, call or similar right pursuant to which the Debtor Company or any of its Subsidiaries for 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 $100,000;
(K) any Contract concerning Intellectual Property (as defined in Section 5.1(p)) to which the Company or the Subsidiaries are a party, including without limitation agreements granting the Company and the Subsidiaries rights to use Intellectual Property owned by third parties, non-customized assertion agreements, settlement agreements, agreements granting rights to use Scheduled Intellectual Property (as defined in Section 5.1(p)), trademark coexistence agreements and trademark consent agreements (in all cases, other than licenses pursuant to the standard forms provided by the Company in the on-line data room and licenses for commercial “off-the-shelf” or “shrink-wrap” software that is generally available on commercial termshas not been modified or customized for the Company);
(L) any Contract to authorize or license any third party to manufacture, reproduce or sell any products of the Company or any of its Subsidiaries;
(2M) licensed any Contract regarding any acquisition of assets or a business by the Debtor Company or any of its Subsidiaries to which there may be any Person;
(C) each joint venture, partnership and other similar Contract involving future obligation on the sharing of profits part of the Debtor Company or any of its Subsidiaries with any third partyto make additional payments, including but not limited to by means of an earn-out or similar contingent payment mechanism in excess of $200,000;
(DN) each any Contract that expressly limits regarding any disposition of assets or a business by the freedom of the Debtor Company or any of its Subsidiaries (or, after to which there may be any future obligation on the Closing, ProMedica part of the Company to make additional payments or as to which there is any continuing liability of the Company or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(EO) each any Contract under to which the Debtor Company or any of its Subsidiaries has borrowed or loaned moneyis a party, or by which any noteof them are bound, bond, indenture, mortgage or any guarantee the ultimate contracting party of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating which to the acquisition knowledge of the Company is a Governmental Entity (including any subcontract with a prime contractor or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as subcontractor who is a party to any such settlement or stipulation contract) (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurersa “Government Contract”); and
(HP) each any other Contract that provides for indemnification or group of related Contracts that, if terminated or subject to a default by any officerparty thereto, director would, individually or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of businessaggregate, reasonably be expected to result in a Material Adverse Effect (the Contracts described in clauses (A) – (P), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(ii) Each A correct and complete copy of each Material Contract has previously been delivered or made available to Parent in the on-line data room or publicly filed by the Company with the SEC as an exhibit to the Company Reports and each Government such Contract is a valid and binding on agreement of the Debtor Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in neither the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor or its Subsidiaries and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material breach of or default thereunder by the Debtor or Company nor any of its Subsidiaries or would permit terminationnor, modification or acceleration thereof, in each case except as would not, or would not reasonably be expected to, individually or in to the aggregate, have a Material Adverse Effect. To the Knowledge knowledge of the DebtorCompany, no any other party to thereto is in default or breach in any Material Contract or respect under the terms of any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 1 contract
Material Contracts and Government Contracts. (ia) Except for this Agreement and except for the Contracts filed as part of the Company Public Disclosure Record, Section 2.1(l)(i(11)(a) of the Debtor Company Disclosure Letter sets forth a true and complete list of each of the following Contracts to which, as of which the date hereof, the Debtor Company or any of its Subsidiaries is a party to or by which bound by:
(i) any Contract that is reasonably likely to require either annual payments to or from the Debtor Company and its Subsidiaries of more than $4,000,000;
(ii) any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”):
(A) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to in which the Debtor Company or any of its Subsidiaries currently leases owns more than a five percent voting, economic or subleases real other membership or personal property partnership interest, or any interest valued at more than $2,500,000 without regard to percentage voting or from economic interest;
(iii) any Person Contract (other than QCP solely among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property owed by the Company, in either case, whether incurred, assumed, guaranteed or secured by any of its Affiliates) providing for lease payments asset, in excess of $5,000,000 per annum (in each case, other than the Subleases)2,500,000;
(Biv) any Contract pursuant to which providing for: (A) potentially significant indemnification, except for any such Contract that (x) is not material Intellectual Property Rights are (1) licensed by any Person to the Debtor Company and its Subsidiaries, and (y) was entered into in the Ordinary Course; or (B) potentially significant “earn out” or other contingent payment obligations by the Company or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(Cv) each joint venture, partnership and other similar any Contract involving that: (A) purports to limit in any material respect either the sharing type of profits of business in which the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor Company or any of its Subsidiaries (or, after the ClosingEffective Time, ProMedica the Parent or any of its Subsidiaries) to compete may engage or the manner or locations in which any of them may so engage in any business; (B) could require the disposition of any material assets or line of business or within any geographic area or with any Person;
(E) each Contract under which of the Debtor Company or any of its Subsidiaries has borrowed or loaned moneyor, after the Effective Time, the Parent or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to Subsidiaries; (C) prohibits or limits the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation right of any action against the Debtor Company or any of its Subsidiaries by to use, transfer, assign, license, develop, distribute or enforce any other of their respective Intellectual Property rights; or (D) includes “take or pay” requirements or similar provisions obligating a Person to obtain a minimum quantity of goods or services from another Person, other than settlement agreements for cash that do except as would not exceed $1,000,000 individually be material to the Company and its Subsidiaries (taken as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurersa whole); and;
(Hvi) each any Contract between the Company or any of its Subsidiaries, on the one hand, and (A) any director, (B) the chairman, chief executive officer, president, secretary, treasurer or any senior vice-president of the Company, or (C) any Person beneficially owning one percent or more of the outstanding Common Shares, on the other hand;
(vii) any Contract that provides for indemnification grants any right of any officer, director first refusal or employee right of first offer or similar right or that limits or purports to limit the ability of the Debtor Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of any material assets or businesses;
(viii) any Contract (other than Company Equity Awards or the ESPP) 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 $500,000;
(ix) any Contract, other than purchase orders, with a Significant Supplier;
(x) any Contract, other than purchase orders, with a Significant Customer;
(xi) any Contract for the employment of, or receipt of any services from any Company Employee or Company Contractor providing for annual cash base salary or wage or consulting fees (excluding, for the avoidance of doubt, variable compensation) in excess of $200,000;
(xii) any employment or consulting Contract which provides for change in control entitlements, or active retention payments in connection with a change of control; and
(xiii) any collective bargaining agreement or similar Contract with any labour union, works council, labour organization, economic committee, or other employee representative body applicable to any Company Employee or Company Contractor; (each such Contract described in the ordinary course of businessforegoing clauses (i) through (xiii), is referred to herein as a “Material Contract”).
(iib) Each Complete and correct copies of each Material Contract and each Government Contract have been made available to the Parent prior to the date hereof. Each of the Material Contracts is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, and, to the Knowledge of the DebtorCompany’s Knowledge, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor Company or any of its Subsidiaries Subsidiaries, and to the Company’s Knowledge, any other party thereto, and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or its Subsidiaries, and to the Company’s Knowledge, any of its Subsidiaries or would permit termination, modification or acceleration thereofother party thereto, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(iiii) For purposes With respect to each Government Contract, except as would not have a Material Adverse Effect: (A) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract were complete and correct in all material respects as of this Agreementtheir effective date, and the Company and each of its Subsidiaries have complied in all material respects with all such representations and certifications of the Company and its Subsidiaries; and (B) neither any Governmental Entity nor any prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries that the Company or any such Subsidiary has breached or violated any material certification, representation, clause, provision or requirement pertaining to such Government Contract.
(ii) Except as would not have a Material Adverse Effect: (A) to the Company’s Knowledge, neither the Company nor any of its Subsidiaries nor any of their respective personnel is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (B) neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract; and (C) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any of their respective personnel has been suspended or debarred from doing business with any Governmental Entity or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for any Governmental Entity contracting.
Appears in 1 contract
Material Contracts and Government Contracts. (i) Section 2.1(l)(iAs of the date of this Agreement, except as set forth on Schedule 5.1(j) of the Debtor Company Disclosure Letter sets forth Letter, neither the Company nor any of its Subsidiaries is a list party to or bound by:
(A) any lease of each (i) real property or (ii) personal property providing for annual rentals of $500,000 or more not cancelable by the Company (without premium or penalty) within six (6) months;
(B) any Contract that requires or is reasonably likely in the ordinary course of business to result in either (x) annual payments to or from the Company and its Subsidiaries of more than $500,000 or (y) aggregate payments to or from the Company and its Subsidiaries of more than $1,000,000;
(C) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the following Contracts Company, any partnership, joint venture or other similar agreement or arrangement relating to whichthe formation, as creation, operation, management or control of any partnership or joint venture;
(D) any Contract (other than among direct or indirect wholly owned Subsidiaries of the date hereofCompany) relating to indebtedness for borrowed money in amounts greater than $500,000 (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(E) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the Debtor type of business in which the Company or its Affiliates may engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company or its Affiliates or (III) grants "most favored nation" status that applies to the Company and its Affiliates or (IV) prohibits or limits the right of the Company or any of its Affiliates to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property owned by the Company or any of its Affiliates, in a manner that is material to their business as presently conducted;
(F) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its Affiliates;
(G) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or, to the knowledge of the Company, any Person beneficially owning five (5) percent or more of the outstanding Shares (other than Parent or any of their respective assets is bound (each, a “Material Contract”):Parent's Subsidiaries);
(AH) other than any Contract (or group of related Contracts with respect filed as an exhibit to a single transaction or series of related transactions) the Company's Annual Report on Form 10-K pursuant to which Item 601(b)(10) of Regulation S-K under the Debtor Securities Act, any Contract providing for indemnification by the Company or any of its Subsidiaries currently leases or subleases real or personal property of any Person, except for any such Contract that is (x) not material to or from any Person (other than QCP the Company or any of its AffiliatesSubsidiaries and (y) providing for lease payments entered into in excess the ordinary course of $5,000,000 per annum (in each case, other than the Subleases)business;
(BI) any Contract 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 $500,000;
(J) any reinsurance and coinsurance Contracts, including retrocessional agreements or surplus relief agreements, to which any Company Insurance Subsidiary is a party or under which any Company Insurance Subsidiary has any existing rights, obligations or liabilities;
(K) any Government Contract (as defined below) (i) involving aggregate payments to or from the Company and its Subsidiaries of more than $500,000 or (ii) with any agency, body or instrumentality of the federal government of the United States of America;
(L) any agency, general agency or managing general agency Contracts, joint marketing Contracts, program administrator Contracts, commission Contracts, placement service Contracts or other broker Contracts, including any Contracts, whereby underwriting authority or other authority to execute and issue insurance policies is given to a third party and which require or are reasonably likely to result in aggregate annual payments to or from the Company and its Subsidiaries of more than $250,000;
(M) any Contract pursuant to which the Company or any material Subsidiary grants or obtains the right to use Intellectual Property Rights are (1) licensed by any Person requiring annual payments to or from the Debtor Company or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each 250,000 or any Contract entered into in the past three (3) years relating to Intellectual Property which is otherwise material to the acquisition or disposition conduct of assets the Company and/or its Subsidiaries' businesses as currently conducted (other than in Contracts granting rights to use commercial off-the-shelf software that has not been modified or customized specifically for the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of Company and/or its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurersSubsidiaries); and
(HN) each any other Contract that provides for indemnification of that, if terminated or subject to a default by any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.
(ii) Each Material Contract and each Government Contract is valid and binding on the Debtor or its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected towould, individually or in the aggregate, have be reasonably likely to result in a Company Material Adverse Effect. There is no material breach of or default under any Effect (such Contracts by the Debtor or its Subsidiaries and no event has occurred thatContracts, together with the lapse of time or the giving of notice or both, would constitute a material breach of or default thereunder by the Debtor or Contracts described in clauses (A) - (M) and any of its Subsidiaries or would permit termination, modification or acceleration thereof, in each case except Contract required to be filed as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice an exhibit to the Debtor or any Company's Annual Report on Form 10-K pursuant to Item 601(b)(10) of its Subsidiaries that it is terminating Regulation S-K under the Securities Act as currently in effect, and together with all exhibits and schedules to such Contracts, collectively the "Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse EffectContracts").
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 1 contract
Samples: Merger Agreement (American International Group Inc)
Material Contracts and Government Contracts. (i) Except for this Agreement, any Contracts filed as exhibits to or incorporated by reference into the Company Reports and any Contracts listed in Section 2.1(l)(i5.1(j)(i) of the Debtor Company Disclosure Letter sets forth a list of each of the following Contracts to whichLetter, as of the date hereofof this Agreement, none of the Debtor Company or any of its Subsidiaries is a party to or bound by which the Debtor or any of its Subsidiaries or any of their respective assets is bound (each, a “Material Contract”)::
(A) any Contract (or group of related Contracts with respect that would be required to be filed by the Company as a single transaction or series of related transactions) “material contract” pursuant to which Item 601(b)(10) of Regulation S‑K under the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases)Securities Act;
(B) any Contract pursuant containing covenants binding upon the Company or its Subsidiaries that materially restrict, or purport to which any material Intellectual Property Rights are (1) licensed by any Person to materially restrict, the Debtor ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict, or purport to materially restrict, the ability of the Surviving Corporation or its Affiliates) to compete in any business or geographic area or which grant “most favored nation” or similar status that, following the Merger, would apply to Parent and its Subsidiaries;
(C) with any Person which provides operating and maintenance, asset management or other than nonsimilar project-exclusive licenses level services to the Debtor Company or any of its Subsidiaries, that involved payments by the Company or any of its Subsidiaries for non-customized software during either of the years ended December 31, 2015 or December 31, 2016 in excess of $300,000 in the aggregate or that is generally available on commercial termsexpected to do so during the year ending December 31, 2017;
(D) for the purchase of power from the Company or any of its Subsidiaries;
(2E) licensed providing for indemnification by the Debtor Company or any of its Subsidiaries of any Person, except for Contracts entered into in the ordinary course of business;
(F) between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares, other than Contracts that will be rejected or terminated as of the Effective Time pursuant to the Settlement Agreement;
(G) that is a stockholder or investor rights, registration rights or similar agreement;
(H) evidencing indebtedness for borrowed money of the Company or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving third party or any guarantee by the sharing of profits of the Debtor Company or any of its Subsidiaries with of any such indebtedness of a third party;
(DI) each that is a joint venture agreement, joint operating agreement, partnership agreement or other similar Contract involving a sharing of profits and expenses;
(J) that expressly limits (i) contains a put, call or similar right pursuant to which the freedom of the Debtor Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets or (or, after the Closing, ProMedica ii) grants any rights of first refusal or option to purchase or otherwise acquire any interest in any of the properties or assets owned by the Company or its Subsidiaries) to compete , in any line each case that have a fair market value or purchase price of business or within any geographic area or with any Personmore than $1 million;
(EK) each Contract under which that by its terms requires aggregate payments (which, for the Debtor avoidance of doubt, shall not include any advisory or similar engagements) by or to the Company or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000300,000 in any fiscal year period (other than any Insurance Policies);
(FL) each Contract entered into in the past three (3) years relating that relates to the acquisition (whether by merger, consolidation, acquisition of stock or disposition otherwise) of any interest in any Person or any business, line of business or division thereof, or a material portion of the assets of any Person that has not yet been consummated or that has continuing material obligations;
(other than M) that grants a material Lien. Each such Contract described in clauses (A) through (M), whether entered into before or after the date of this Agreement, is referred to herein as a “Material Contract”.
(ii) Except for expirations or terminations in the ordinary course of business) or any capital stock business in accordance with the terms of any enterprisesuch Material Contracts, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.
(ii) Each Material Contract and each Government Contract Contracts is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, be and, to the Knowledge of the DebtorCompany, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effecteffect and enforceable in accordance with its terms, except for such failures to be valid and binding or to be in full force and effect and enforceable as would not, or would not reasonably be expected tobe, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect. There is no material breach of or default under any such Material Contracts by the Debtor Company or its Subsidiaries or, to the Knowledge of the Company, any other party thereto, and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any of its Subsidiaries or would permit terminationor, modification or acceleration thereofto the Knowledge of the Company, any other party thereto, in each case except as would not, or would not reasonably be expected tobe, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(iii) For purposes of this Agreement, the following terms shall have the following meanings:
Appears in 1 contract
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of Except for this Agreement and except for Contracts filed as exhibits to the Debtor Disclosure Letter sets forth a list of each of the following Contracts to whichCompany Reports, as of the date hereofof this Agreement, none of the Debtor Company or its Subsidiaries is a party to or bound by any Contract:
(A) that would be required to be filed by the Company as a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) that is reasonably likely to require aggregate payments of royalties or other amounts to or from the Company and its Subsidiaries in 2007 or any subsequent calendar year of more than $150,000, or is reasonably likely to require aggregate payments to or from the Company and its Subsidiaries in any time period of more than $500,000;
(C) that would prevent, materially delay or materially impede the Company's ability to consummate the Merger or the other transactions contemplated hereby;
(D) that (i) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (ii) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, of Parent or its Subsidiaries, (iii) grants "most favored nation" status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (iv) prohibits or limits in any material respect the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights;
(E) to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which the Debtor Company or any Subsidiary has agreed not to acquire assets or securities of the other party or of any of the Affiliates of such party;
(F) between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of their respective assets is bound (each, a “Material Contract”):the outstanding Shares;
(AG) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) pursuant to which providing for indemnification by the Debtor Company or any of its Subsidiaries currently leases of any Person, except for such indemnification provisions as are (x) customary in the Company's industry or subleases real or personal property incidental to or from any Person (other than QCP or any the routine conduct of its Affiliatesbusiness, (y) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases);
(B) any Contract pursuant not reasonably likely to which any be material Intellectual Property Rights are (1) licensed by any Person to the Debtor Company or any of its Subsidiaries and (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial termsz) or (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually business (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurersan "Ordinary Course Indemnity"); and
(H) each Contract that provides for indemnification of any officercontains a put, director call or employee of similar right pursuant to which the Debtor Company or any of its Subsidiaries other 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 $100,000; and
(I) Each such Contract described in the ordinary course of businessclauses (A) through (H) is referred to herein as a "MATERIAL CONTRACT".
(ii) Each A correct and complete copy of each Material Contract has previously been delivered or made available to Parent. Each of the Material Contracts (and each Government Contract those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the SEC Reports) is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Debtor, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no material breach of or default under any such Contracts by the Debtor Company or its Subsidiaries and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any of its Subsidiaries or would permit termination, modification or acceleration thereofSubsidiaries, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To .
(A) With respect to each Government Contract (as hereinafter defined), except as would not reasonably be expected to have a Material Adverse Effect, (x) all representations and certifications executed, acknowledged or set forth in such Governmental Contract were complete and correct in all material respects as of their effective date, and the Knowledge Company and each of its Subsidiaries have complied in all material respects with all such representations and certifications: (y) neither a Governmental Entity nor any prime contractor, subcontractor or other Person acting on behalf of the Debtor, no party to any Material Contract a Governmental Entity or any under a Government Contract has delivered any written notice to notified the Debtor Company or any of its Subsidiaries that it is terminating the Company or any such Material Contract Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract; and (z) no termination for convenience, except termination for default, cure notice or show cause notice is in effect as would not, or would not reasonably be expected to, individually or in of the aggregate, have a Material Adverse Effectdate hereof pertaining to any Government Contract.
(iiiiv) For purposes (x) to the knowledge of this Agreementthe Company, neither the Company nor any of its Subsidiaries nor any of their respective personnel is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (y) neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract; and (z) neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for United States government contracting.
Appears in 1 contract
Material Contracts and Government Contracts. (i) Section 2.1(l)(i5.1(j)(i) of the Debtor Company Disclosure Letter sets forth a list lists all written and, to the knowledge of each the Company, all oral Contracts of the following Contracts types to which, as of which the date hereof, the Debtor Company or any of its Subsidiaries is a party or by which the Debtor Company or any of its Subsidiaries is bound, in each case as of the date of this Agreement, except for this Agreement and any Contracts filed as exhibits to or any of their respective assets is bound (each, a “Material Contract”):incorporated by reference into the Company Reports:
(A) any Any Contract (or group of related Contracts with respect that would be required to be filed by the Company as a single transaction or series of related transactions) “material contract” pursuant to which Item 601(b)(10) of Regulation S K under the Debtor or any of its Subsidiaries currently leases or subleases real or personal property to or from any Person (other than QCP or any of its Affiliates) providing for lease payments in excess of $5,000,000 per annum (in each case, other than the Subleases)Securities Act;
(B) any Any Contract pursuant containing covenants binding upon the Company or its Subsidiaries that materially restrict, or purport to which any material Intellectual Property Rights are (1) licensed by any Person to materially restrict, the Debtor ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict, or purport to materially restrict, the ability of the Surviving Corporation or its Affiliates) to compete in any business or geographic area or which grant “most favored nation” or similar status that, following the Merger, would apply to Sponsor and its Affiliates (provided that the Company shall only be required to list in Section 5.1(j)(i) of the Company Disclosure Letter any such Contracts that are binding upon the Company or any of its Material Subsidiaries);
(C) Any Contract with any third party which provides operating and maintenance, asset management or other than nonsimilar project-exclusive licenses level services to the Debtor Company or any of its Subsidiaries, that involved payments by the Company or any of its Subsidiaries for non-customized software during either of the years ended December 31, 2015 or December 31, 2016 in excess of $500,000 in the aggregate or that is generally available on commercial termsexpected to do so during the year ending December 31, 2017 (provided that the Company shall only be required to list in Section 5.1(j)(i) of the Company Disclosure Letter any such Contracts that relate to services provided to the Company or any of its Material Subsidiaries);
(2D) licensed by Any Contract with any third party which provides for the Debtor purchase of energy, capacity or ancillary services from the Company or any of its Subsidiaries to any Person;
and that (C1) each joint venture, partnership and other similar Contract involving generated revenues from such third party in excess of $2,000,000 in the sharing of profits of aggregate for the Debtor Company or any of its Subsidiaries with during the year ended December 31, 2016 or that is expected to do so during the year ending December 31, 2017 or (2) is expected to generate revenues from such third party in excess of $10,000,000 in the aggregate for the Company or any of its Subsidiaries over the term of such Contract (provided that the Company shall only be required to list in Section 5.1(j)(i) of the Company Disclosure Letter any such Contracts that relate to purchases from the Company or any of its Material Economic Subsidiaries);
(E) Any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for Contracts entered into in the ordinary course of business and Contracts otherwise listed in Sections 5.1(j)(i)(A) through (D) or (F) through (M) of the Company Disclosure Letter;
(F) Any Contract between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares, on the other hand;
(G) Any Contract that is a stockholder or investor rights, registration rights or similar agreement;
(H) Any Contract evidencing indebtedness for borrowed money of the Company or any of its Subsidiaries, in each case in excess of $10,000,000 (provided that, in the case of any such indebtedness that is cross-guaranteed or cross-collateralized, including in respect of any distributed generation portfolios, the amount of such indebtedness shall be determined on an aggregate basis), to any third party or any guarantee by the Company or any of its Subsidiaries of any such indebtedness of a third party;
(DI) each Any Contract that expressly limits the freedom is a joint venture agreement, joint operating agreement, partnership agreement or other similar Contract involving a sharing of profits and expenses, except for Contracts otherwise listed in Sections 5.1(j)(i)(A) through (H) or (J) through (M) of the Debtor Company Disclosure Letter (provided that the Company shall only be required to list in Section 5.1(j)(i) of the Company Disclosure Letter any such Contracts that are binding upon the Company or any of its Material Subsidiaries);
(J) Any Contract that (1) 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 or (or2) grants any rights of first refusal or option to purchase or otherwise acquire any interest in any of the properties or assets owned by the Company or its Subsidiaries, after in each case that have a fair market value or purchase price of more than $5,000,000 (provided that the ClosingCompany shall only be required to list in Section 5.1(j)(i) of the Company Disclosure Letter any such Contracts that are binding upon or relate to the properties or assets of the Company or any of its Material Subsidiaries);
(K) Any Contract that by its terms calls for aggregate payments (which, ProMedica for the avoidance of doubt, shall not include any advisory or similar engagements) by or to the Company or any of its Subsidiaries in excess of $5,000,000 in the aggregate over the term of such Contract, except for Contracts otherwise listed in Sections 5.1(j)(i)(A) through (J) or (L) through (M) of the Company Disclosure Letter (provided that the Company shall only be required to list in Section 5.1(j)(i) of the Company Disclosure Letter any such Contracts that call for payments by the Company or any of its Material Subsidiaries);
(L) Any Contract that relates to the acquisition (whether by merger, consolidation, acquisition of stock or otherwise) of any equity interest in any Person or a material portion of the assets of any Person, in each case that has not yet been consummated or that has continuing material obligations;
(M) Any Contract that grants a material Lien on assets of the Company or any of its Subsidiaries, except for Contracts otherwise listed in Sections 5.1(j)(i)(A) through (L) of the Company Disclosure Letter (provided that the Company shall only be required to compete list in Section 5.1(j)(i) of the Company Disclosure Letter any line such Contracts that grant a material Lien on assets of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor Company or any of its Subsidiaries has borrowed Material Subsidiaries). Each such Contract described in clauses (A) through (M), whether entered into before or loaned moneyafter the date of this Agreement, and whether written or any noteoral, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating is referred to amounts in excess of $5,000,000;herein as a “Material Contract”.
(Fii) each Contract entered into in the past three (3) years relating to the acquisition Except for expirations or disposition of assets (other than terminations in the ordinary course of business) or any capital stock business in accordance with the terms of any enterprisesuch Material Contracts, in each case, in excess of $10,000,000 individually (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.
(ii) Each Material Contract and each Government Contract Contracts is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, be and, to the Knowledge of the DebtorCompany, each other party thereto, and, to the Knowledge of the Debtor, and is in full force and effecteffect and enforceable in accordance with its terms, except for such failures to be valid and binding or to be in full force and effect and enforceable as would not, or would not reasonably be expected tobe, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect. There is no material breach of or default under any such Material Contracts by the Debtor Company or its Subsidiaries or, to the Knowledge of the Company, any other party thereto, and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any of its Subsidiaries or would permit terminationor, modification or acceleration thereofto the Knowledge of the Company, any other party thereto, in each case except as would not, or would not reasonably be expected tobe, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(iii) For purposes of The representations and warranties set forth in this Agreement, Section 5.1(j) shall not apply with respect to the following terms shall have the following meanings:Excluded Assets.
Appears in 1 contract
Material Contracts and Government Contracts. (i) Section 2.1(l)(i) of Except for this Agreement and except for Contracts filed as exhibits to the Debtor Disclosure Letter sets forth a list of each of the following Contracts to whichCompany Reports, as of the date hereof, none of the Debtor Company or its Subsidiaries is a party to or bound by:
(A) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(B) except as disclosed on Section 5.1(j)(i)(B) of the Company Disclosure Letter, any Contract containing covenants binding upon the Company or its Subsidiaries that restrict the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its affiliates) to compete in any business or geographic area or which grant “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries;
(C) any Contract involving the payment or receipt of royalties or other amounts of more than $100,000 in the aggregate calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries;
(D) any Contract with any affiliate;
(E) any Contract containing any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person;
(F) any Contract that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer, the Merger or the other Transactions;
(G) other than as disclosed on Section 5.1(j)(i)(G) of the Company Disclosure Letter, any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for the Company’s agreement with Cantor Xxxxxxxxxx, non-material Contracts entered into in the ordinary course of business;
(H) any Contract that was not negotiated and entered into on an arm’s length basis;
(I) any Contract that restricts the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its affiliates) to compete in any business or geographic area or which grant “most favored nation” status that, following the Offer or the Merger, would apply to Parent and its Subsidiaries;
(J) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (III) grants “most favored nation” status that, following the Offer or the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (IV) prohibits or limits the right of the Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights;
(K) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or by similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Debtor other party or any of its affiliates;
(L) any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of their respective assets is bound (eachthe outstanding Shares, a “Material Contract”):except as disclosed on Section 5.1(j)(i)(L) of the Company Disclosure Letter,;
(AM) any Contract (that contains a put, call or group of related Contracts with respect to a single transaction or series of related transactions) similar right pursuant to which the Debtor Company or any of its Subsidiaries currently leases could be required to purchase or subleases real or personal property to or from sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $100,000 except for Warrants disclosed in the Company Disclosure Letter.
(N) any joint venture Contract, partnership arrangements or other than QCP Contracts involving a sharing with any third party of profits, losses, costs or liabilities by the Company or any of its AffiliatesSubsidiaries; and
(O) providing for lease payments in excess any Contract (x) relating to research or development, clinical studies to gather safety and effectiveness data about a Medical Device to support a premarket application or premarket notification, (y) relating to the sale, supply, licensing, co-promotion, marketing or manufacturing of $5,000,000 per annum any Medical Device, or (z) with any distributor of any Medical Device, in each case, other than the Subleases);
(B) except for any such Contract pursuant to which any material Intellectual Property Rights are that is (1) licensed by any Person not material to the Debtor Company or any of its Subsidiaries (other than non-exclusive licenses to the Debtor or any of its Subsidiaries for non-customized software that is generally available on commercial terms) or and (2) licensed by the Debtor or any of its Subsidiaries to any Person;
(C) each joint venture, partnership and other similar Contract involving the sharing of profits of the Debtor or any of its Subsidiaries with any third party;
(D) each Contract that expressly limits the freedom of the Debtor or any of its Subsidiaries (or, after the Closing, ProMedica or any of its Subsidiaries) to compete in any line of business or within any geographic area or with any Person;
(E) each Contract under which the Debtor or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000,000;
(F) each Contract entered into in the past three (3) years relating to the acquisition or disposition of assets (other than in the ordinary course of business. Each such Contract described in clauses (A) or any capital stock of any enterprise, in each case, in excess of $10,000,000 individually through (other than such Contracts previously approved in writing by QCP or one of its Subsidiaries pursuant O) is referred to the Master Lease);
(G) each Contract entered into since January 1, 2015 related to any settlement or stipulation of any action against the Debtor or any of its Subsidiaries by any other Person, other than settlement agreements for cash that do not exceed $1,000,000 individually herein as to any such settlement or stipulation (excluding amounts paid by insurers) or $5,000,000 (including any amounts paid by insurers); and
(H) each Contract that provides for indemnification of any officer, director or employee of the Debtor or any of its Subsidiaries other than in the ordinary course of business.a “Material Contract”
(ii) Each of the Material Contract Contracts (and each Government Contract those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the Company Reports) is valid and binding on the Debtor Company or its Subsidiaries, as the case may be, and, to the Knowledge knowledge of the Debtorofficers of the Company, each other party thereto, and, to the Knowledge of the Debtor, thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There To the Company’s knowledge, there is no material breach of or default under any such Contracts by the Debtor Company or its Subsidiaries and no event has occurred that, that with the lapse of time or the giving of notice or both, both would constitute a material breach of or default thereunder by the Debtor Company or any of its Subsidiaries or would permit termination, modification or acceleration thereofSubsidiaries, in each case except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Debtor, no party to any Material Contract or any Government Contract has delivered any written notice to the Debtor or any of its Subsidiaries that it is terminating such Material Contract or Government Contract, except as would not, or would not reasonably be expected to, individually or in the aggregate, expect to have a Material Adverse Effect.
(iiiA) For purposes With respect to each Government Contract (as defined below), except as would not reasonably be expected to have a Material Adverse Effect, (x) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract were complete and correct in all material respects as of this Agreementtheir effective date, and the Company and each of its Subsidiaries have complied in all material respects with all such representations and certifications, (y) neither the United States government nor any prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries that the Company or any such Subsidiary has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract; and (z) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract.
(B) Except as would not reasonably be expected to have a Material Adverse Effect, (x) to the knowledge of the officers of the Company, neither the Company nor any of its Subsidiaries nor any of their respective personnel is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (y) neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the United States government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract; and (z) neither the Company nor any of its Subsidiaries nor, to the knowledge of the officers of the Company, any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the following terms shall have the following meanings:subject of a finding of non-responsibility or ineligibility for United States government contracting.
Appears in 1 contract
