Material Contracts and Obligations. (a) Section 2.14 of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date hereof (each of the Company Contracts required to be listed in clauses (i) through (xvii) that follows, a “Company Material Contract”): (i) each Company Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor or involving any loans or advances by the Company to any officer, director or employee which are outstanding as of the date hereof; (ii) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreements; (iii) each Company Contract imposing any restriction on the Company’s right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology; (iv) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship; (v) each Company Contract relating to the creation of any Encumbrance with respect to any material asset of Company; (vi) each real property lease agreement; (vii) each Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement; (viii) each Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate (ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities; (x) each Company Contract constituting or relating to a Government Contract; (xi) each Company Contract that contains “most favored nation” or preferred pricing provisions; (xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement; (xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business; (xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution of the Company Products; (xv) each Company Contract that has a term of more than 60 days and that may not be terminated by the Company (without penalty) within 60 days after the delivery of a termination notice by the Company; (xvi) each other Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and (xvii) each Company Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate. (b) The Company has delivered or made available to Parent accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 of the Company Disclosure Schedule provides an accurate description of the terms of each Company Material Contract that is not in written form. Each Company Material Contract is valid and in full force and effect, and, to the Knowledge of the Company, is enforceable by the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. (c) Except as set forth in Section 2.14 of the Company Disclosure Schedule: (i) the Company has not violated or breached, or committed any default under, any Company Material Contract, and, to the Knowledge of the Company, no other Person has violated or breached, or committed any default under, any Company Material Contract; (ii) to the Knowledge of the Company, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) result in a material violation or material breach of any of the provisions of any Company Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Company Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Company Material Contract, or (D) give any Person the right to cancel, terminate or modify any Company Material Contract; (iii) the Company has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Material Contract; and (iv) the Company has not waived any of its material rights under any Company Material Contract.
Appears in 4 contracts
Samples: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Merger Agreement (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc)
Material Contracts and Obligations. (a) Section 2.14 3.14 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date hereof (each of the Company Parent Contracts required to be listed in clauses (i) through (xvii) that follows, a “Company Parent Material Contract”):
(i) each Company Parent Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor or involving any loans or advances by the Company Parent to any officer, director or employee which are outstanding as of the date hereof;
(ii) each Company Parent Contract relating to the acquisition, transfer, use, development, sharing or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the CompanyParent’s standard customer agreements;
(iii) each Company Parent Contract imposing any restriction on the CompanyParent’s right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Company Parent Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Company Parent Contract relating to the creation of any Encumbrance with respect to any material asset of CompanyParent;
(vi) each real property lease agreement;
(vii) each Company Parent Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Company Parent Contract resulting in the Company Parent incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate
(ix) each Company Parent Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(x) each Company Parent Contract constituting or relating to a Government Contract;
(xi) each Company Parent Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Parent Contract providing for indemnification by the Company Parent with respect to infringements of proprietary rights other than pursuant to the CompanyParent’s standard customer agreement;
(xiii) each Contract between the Company Parent and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution of the Company Parent Products;
(xv) each Company Parent Contract that has a term of more than 60 days and that may not be terminated by the Company Parent (without penalty) within 60 days after the delivery of a termination notice by the CompanyParent;
(xvi) each other Company Parent Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the CompanyParent’s past practices; and
(xvii) each Company Parent Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all written Company Parent Material Contracts, including all amendments thereto. Section 2.14 3.14 of the Company Parent Disclosure Schedule provides an accurate description of the terms of each Company Parent Material Contract that is not in written form. Each Company Parent Material Contract is valid and in full force and effect, and, to the Knowledge of the CompanyParent, is enforceable by the Company Parent in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Section 2.14 3.14 of the Company Parent Disclosure Schedule:
(i) the Company Parent has not violated or breached, or committed any default under, any Company Parent Material Contract, and, to the Knowledge of the CompanyParent, no other Person has violated or breached, or committed any default under, any Company Parent Material Contract;
(ii) to the Knowledge of the CompanyParent, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) result in a material violation or material breach of any of the provisions of any Company Parent Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Company Parent Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Company Parent Material Contract, or (D) give any Person the right to cancel, terminate or modify any Company Parent Material Contract;
(iii) the Company Parent has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Parent Material Contract; and
(iv) the Company Parent has not waived any of its material rights under any Company Parent Material Contract.
Appears in 4 contracts
Samples: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Merger Agreement (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc)
Material Contracts and Obligations. (a) Section 2.14 5.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as Schedules contains a true and complete list of the date hereof (each of the following Contracts to which SCAN Group or any SCAN Company is a party or bound (such Contracts, together with the SCAN Key Provider Contracts required to be listed in clauses (iSection 5.14(c) through (xvii) that followsof the Disclosure Schedules, each, a “Company SCAN Material Contract” and, collectively, the “SCAN Material Contracts”):
(i) each any agreement which required annual expenditures by SCAN Group or a SCAN Company Contract relating in excess of $1,000,000 for calendar year 2021, other than as otherwise disclosed pursuant to the employment of, or the performance of services by, any employee, consultant or independent contractor or involving any loans or advances by the Company to any officer, director or employee which are outstanding as of the date hereofclauses (ii)-(x) below;
(ii) each any material employment, consulting or collective bargaining agreements, including any agreements providing for an ongoing severance obligation or any obligation upon a change of control or similar provisions;
(iii) SCAN Benefit Plans;
(iv) any agreement relating to indebtedness for borrowed money;
(v) any guarantee or other agreement by which SCAN Group or any SCAN Company Contract is or may become liable for indebtedness or any other obligations of another Person;
(vi) any agreement relating to the disposition, directly or indirectly, of any of SCAN Group’s or the SCAN Companies’ assets other than in the ordinary course of business;
(vii) any agreement relating to the acquisition, transferdirectly or indirectly, useof assets, developmentcapital stock, sharing membership interests or license other equity interests of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreements;
(iii) each Company Contract imposing any restriction on the Company’s right or ability (A) to compete Person with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal a fair market value in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Company Contract relating to the creation excess of any Encumbrance with respect to any material asset of Company;
(vi) each real property lease agreement;
(vii) each Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement$1,000,000;
(viii) each SCAN Leases;
(ix) any agreement which contains any exclusivity right in favor of a third party and that involved expenditures by SCAN Group or a SCAN Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate
(ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities1,000,000 for calendar year 2021;
(x) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder agreement under which SCAN Group or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, SCAN Company has materially limited or independent software vendor, or other agreement for distribution of the Company Products;
(xv) each Company Contract that has a term of more than 60 days and that may not be terminated by the Company (without penalty) within 60 days after the delivery of a termination notice by the Company;
(xvi) each other Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and
(xvii) each Company Contract that contemplates or involves restricted its right to (A) the payment compete or delivery of cash or other consideration contract with any Person in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) The Company has delivered or made available to Parent accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 of the Company Disclosure Schedule provides an accurate description of the terms of each Company Material Contract that is not in written form. Each Company Material Contract is valid and in full force and effect, and, to the Knowledge of the Company, is enforceable by the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Section 2.14 of the Company Disclosure Schedule:
(i) the Company has not violated or breached, or committed any default under, any Company Material Contract, and, to the Knowledge of the Company, no other Person has violated or breached, or committed any default under, any Company Material Contract;
(ii) to the Knowledge of the Company, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) result in a material violation or material breach of any of the provisions of any Company Material Contractrespect, (B) give engage in any Person the right to declare a default or exercise any remedy under any Company Material Contractline of business, (C) give operate in any Person the right to accelerate the maturity or performance of any Company Material Contractgeographic location, or (D) give any Person the right to cancel, terminate or modify any Company Material Contract;
(iii) the Company has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Material Contract; and
(iv) the Company has not waived any of its material rights under any Company Material Contract.or
Appears in 3 contracts
Samples: Affiliation Agreement, Affiliation Agreement, Affiliation Agreement
Material Contracts and Obligations. (a) Section 2.14 All of the following agreements, contracts, leases, licenses, mortgages, indentures, instruments, commitments (oral or written), indebtedness, liabilities and other obligations to which each Group Company Disclosure Schedule lists the following Company Contracts in effect as of the date hereof is a party or by which it or its assets is bound (each of the Company Contracts required to be listed in clauses (i) through (xvii) that followseach, a “Company Material Contract” and collectively, the “Material Contracts”):
(i) each Company Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor or involving any loans or advances have been made available for inspection by the Company to any officer, director or employee which Investors and their counsel and are outstanding as listed in Section 3.9(a) of the date hereof;
(ii) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreements;
(iii) each Company Contract imposing any restriction on the Company’s right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Company Contract relating to the creation of any Encumbrance with respect to any material asset of Company;
(vi) each real property lease agreement;
(vii) each Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate
(ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(x) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution of the Company Products;
(xv) each Company Contract that has a term of more than 60 days and that may not be terminated by the Company (without penalty) within 60 days after the delivery of a termination notice by the Company;
(xvi) each other Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and
(xvii) each Company Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) The Company has delivered or made available to Parent accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 of the Company Disclosure Schedule provides an accurate description of the terms of each Company Material Contract that is not in written form. Each Company Material Contract is valid and in full force and effect, and, to the Knowledge of the Company, is enforceable by the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Section 2.14 of the Company Disclosure Schedule:
(i) the Company has not violated having an aggregate value, cost or breachedamount, or committed imposing liability or contingent liability on any default underGroup Company, in excess of RMB20,000,000 other than the cash deposit agreements with banks the amounts of which are included in the Financial Statements (provided that only such Material Contracts under this subclause (i) having an aggregate value, cost or amount, or imposing liability or contingent liability on any Company Material ContractGroup Company, and, to in excess of RMB50,000,000 have been made available for inspection by the Knowledge Investors and their counsel and included in Section 3.9(a) of the Company, no other Person has violated or breached, or committed any default under, any Company Material ContractDisclosure Schedule);
(ii) to the Knowledge of the Companycontaining exclusivity, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) willnon-competition, or would reasonably be expected tosimilar clauses that impair, (A) result in a material violation restrict or material breach of impose conditions on any of the provisions of any Company Material Contract, (B) give any Person the Group Company’s right to declare a default offer or exercise any remedy under any Company Material Contractsell products or services in specified areas, (C) give any Person the right to accelerate the maturity or performance of any Company Material Contractduring specified periods, or (D) give any Person the right to cancel, terminate or modify any Company Material Contractotherwise;
(iii) entered not in the Company has not received any notice ordinary course of business and having an aggregate value, cost or other communication regarding any actual or possible violation or breach ofamount, or default underimposing liability or contingent liability on any Group Company, any Company Material Contract; andin excess of RMB1,000,000;
(iv) transferring or licensing any Proprietary Assets to or from any Group Company other than agreements for commercially available off-the-shelf software that has not been modified or customized for any Group Company;
(v) termination of which would be reasonably likely to have a Material Adverse Effect.
(vi) entered between the Company, Jingdong Century and Tianjin Star East, on the one hand, and any of the PRC Affiliates or individual shareholders of the PRC Affiliates, on the other hand (the “VIE Agreements”),
(vii) involving any of the Key Employees, directors, senior officers or shareholders of any Group Company (provided that Section 3.9(a) of the Disclosure Schedule included only such Material Contracts under this subclause (vii) other than those relating employment or service arrangements in the ordinary course of business the amounts of which have been included in the Financial Statements);
(viii) involving any governmental authority (provided that Section 3.9(a) of the Disclosure Schedule included only such Material Contracts that are not in the ordinary course of business);
(ix) terminating or requiring the consent of a third party as a result of the transactions contemplated by this Agreement or the Ancillary Agreements;
(x) obligating such Group Company to share, license or develop any product or technology;
(xi) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any securities of any Group Company other than (a) those relating to the repurchase of Old Shares as contemplated under Section 9.8 hereof, (b) those agreements pursuant to which the employees, directors, consultants or advisors of the Group Companies have been allocated with any of the ESOP Shares pursuant to the employee and advisor stock option plan from time to time duly adopted by the Company and (b) those agreements the transactions contemplated under which have been consummated and reflected in the Financial Statements); or
(xii) involving the acquisition or sale of a business, a merger, consolidation, amalgamation or similar transaction, or a partnership, joint venture, or similar arrangement other than those agreements the transactions contemplated under which have been consummated and reflected in the Financial Statements.
(b) Each Material Contract constitutes the valid and legally binding obligation of the Group Companies, enforceable in accordance with its terms, and the performance of which does not violate any applicable statute, law, injunction, judgment, decree, order, ruling, assessment or writ of any governmental authority, and is in full force and effect. Each Group Company has not waived any duly performed all of its obligations under each Material Contract in all material rights respects to the extent that such obligations to perform have accrued, and none of the Group Companies has breached, nor does any Seller Party have any knowledge of any claim or threat that (i) any term or condition of any Material Contract has been breached or (ii) any other agreement or understanding to which any Group Company is a party or by which its properties are bound has been breached, in each case which would reasonably be expected to impose liability on any Group Company in excess of RMB50,000,000. No Group Company has given notice (whether or not written) that it intends to terminate a Material Contract or that any other party thereto has materially breached, violated or defaulted under any Material Contract. No Group Company has received any notice (whether or not written) that (i) it has breached, violated or defaulted under any Material Contract or (ii) any other party thereto intends to terminate such Material Contract.
(c) Without limitation to the foregoing subclause (a), none of the Group Companies has breached, and no facts or circumstances are in existence which, with or without the passage of time, could lead to any of the Group Companies being in breach of: (i) the Series A Preferred Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (ii) the Series B Preferred Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (iii) Ordinary Share Purchase Agreement, dated December 31, 2009, by and among the Company, Xxx Smart, Jingdong Century, certain other PRC Subsidiaries, Jingdong 360, the Founder and Tiger Global Five 360 Holdings, (iv) Ordinary Share Purchase Agreement, dated March 17, 2010, by and among the Company, the Founder, Kaixin Asia Limited and Accurate Way Limited, (v) May 2010 Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (vi) Rescission Agreement, dated September 3, 2010, by and among the Company, Xxx Smart, Tiger 360Buy and certain individual shareholders, (vii) Share Purchase Agreement, dated September 3, 2010, by and among Xxx Smart, Tiger 360Buy and certain individual shareholders, (viii) Series C Preferred Share Subscription Agreement (as defined in the Ninth Shareholders Agreement), (ix) the Warrants (as defined in the Ninth Shareholders Agreement), which have been fully and duly exercised by the relevant parties (or its Affiliates) to the Warrants pursuant to the terms and conditions in the respective Warrant, (x) First DST Global Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (xi) Second DST Global Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (xii) Sequoia Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (xiii) Classroom Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement) and (xiv) all shareholder rights and voting agreements of the Company, including the Ninth Shareholders Agreement; and none of the Group Companies has any liability (including any contingent liability) under any of the foregoing agreements.
Appears in 1 contract
Samples: Execution Version (JD.com, Inc.)
Material Contracts and Obligations. Schedule 5.14 sets forth a list of all material Contracts (the "MATERIAL CONTRACTS") to which the Company or any of the Company Subsidiaries is a party or by which it is bound, including without limitation (a) Section 2.14 each Contract which requires future expenditures by the Company or any of the Company Disclosure Schedule lists the following Company Contracts Subsidiaries in effect as excess of the date hereof $50,000; (each of the Company Contracts b) all items required to be listed in clauses Schedule 5.16(a); (c) any Contract to which any stockholder, officer or director of the Company or any of the Company Subsidiaries, or any "affiliate" or "associate" (as such terms are defined in the rules and regulations promulgated under the Securities Act) of such Persons is a party; (d) any indenture, loan or credit agreement, note agreement, deed of trust, mortgage, security agreement, promissory note or other Contract relating to or evidencing Indebtedness; (e) any lease or agreement (other than Intellectual Property and Technology licenses) under which the Company or any of the Company Subsidiaries is lessee of or holds or operates any tangible property, real or personal, owned by any other Person under which payments to such Person exceed $10,000 per annum; (f) any lease or agreement (other than Intellectual Property and Technology licenses) under which the Company or any of the Company Subsidiaries is lessor or permits any Person to hold or operate any property, real or personal, owned or controlled by the Company or any of the Company Subsidiaries; (g) any agreement granting any option to purchase assets, or acquire a license, preemptive right, right of first refusal or similar right to any Person; (h) any covenant not to compete or similar restriction on its ability to conduct a business and any standstill agreements; (i) through (xvii) that follows, a “Company Material Contract”):
(i) each Company any material Contract relating to the employment of, with customers or the performance business partners of services by, any employee, consultant or independent contractor or involving any loans or advances by the Company to or any officer, director or employee which are outstanding as of the date hereof;
Company Subsidiaries; (iij) each any Contract that contains a "most favored nation" or similar preferential pricing term; and (k) any agreement to register securities under the Securities Act of 1933, as amended (the "Securities Act"). The Company Contract relating has made available to Parent copies of all of the acquisition, transfer, use, development, sharing foregoing Contracts (or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreements;
(iii) each Company Contract imposing any restriction on the Company’s right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Company Contract relating to the creation of any Encumbrance with respect to any material asset of Company;
(vi) each real property lease agreement;
(vii) each Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, written summaries in the case of indebtedness and/or liabilities individually less than $50,000oral Contracts). All of such Contracts are valid, in excess of $100,000 in the aggregate
(ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(x) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution of the Company Products;
(xv) each Company Contract that has a term of more than 60 days and that may not be terminated by the Company (without penalty) within 60 days after the delivery of a termination notice by the Company;
(xvi) each other Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and
(xvii) each Company Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) The Company has delivered or made available to Parent accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 of the Company Disclosure Schedule provides an accurate description of the terms of each Company Material Contract that is not in written form. Each Company Material Contract is valid binding and in full force and effect, and, to the Knowledge of effect on the Company, is enforceable by . Neither the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Section 2.14 nor any of the Company Disclosure Schedule:
(i) the Company has not violated or breached, or committed Subsidiaries is in default under any default under, any Company Material Contract, and, to the Knowledge of the Company, no other Person has violated or breached, or committed any default under, any Company Material Contract;
(ii) to the Knowledge of the Company, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) result in a material violation or material breach provision of any of the provisions of such Contracts and no other party to any Company Material Contract, (B) give any Person the right to declare a such Contracts is in default or exercise any remedy under any provision thereof. As of the date hereof, neither the Company Material Contract, (C) give nor any Person of the right Company Subsidiaries has received any written communication from any other party to accelerate the maturity Contracts listed on Schedule 5.14 stating that such other party has decided or performance of any Company Material Contract, or (D) give any Person the right plans to cancel, terminate or modify any Company Material Contract;
(iii) the Company has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Material Contract; and
(iv) the Company has not waived any of its material rights under any Company Material otherwise discontinue such Contract.
Appears in 1 contract
Samples: Agreement and Plan of Merger (NextWave Wireless Inc.)
Material Contracts and Obligations. (a) Section 2.14 3.14 of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date hereof of this Agreement (each of the Company Contracts required to be listed in clauses (i) through (xvii) that follows, a “Company Material Contract”):
(i) each Company Contract relating to the employment of, or the performance of services by, any current employee, consultant or independent contractor of any of the Acquired Companies;
(ii) each Company Contract pursuant to which any of the Acquired Companies is or may become obligated to make: (A) any severance, termination or similar payments to any current or former employee or director, or (B) bonus or similar payment (other than payments constituting base salary) to any current or former employee or director;
(iii) each Company Contract involving any loans or advances by any of the Company Acquired Companies to any officer, director or employee which are outstanding as of the date hereofof this Agreement;
(iiiv) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreementsagreements or employee agreements in the form provided to Parent without material deviation therefrom;
(iiiv) each Company Contract imposing any material restriction on any of the Company’s Acquired Companies’ right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(ivvi) each Company Contract relating to the acquisition, issuance or transfer of any securities;
(vii) each Company Contract (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities of any of the Acquired Companies, (B) providing any Person with any preemptive right, or similar right with respect to any securities of any of the Acquired Companies, or (C) providing the Company with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(viii) each Company Contract: (A) imposing any confidentiality obligation on any of the Acquired Companies or on any other Person (other than routine nondisclosure agreements entered into by any of the Acquired Companies in the Ordinary Course of Business), (B) containing “standstill” or similar provisions, or (C) providing any right of first negotiation, right of first refusal or similar right to any Person;
(ix) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(vx) each Company Contract relating to the creation of any Encumbrance with respect to any material asset of Companyany of the Acquired Companies;
(vixi) each real property lease agreement;
(viixii) each Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity pledge or any surety arrangement;
(viiixiii) each Company Contract resulting in any of the Company Acquired Companies incurring or guarantying any indebtedness for money borrowed borrowed;
(xiv) each Company Contract incorporating or relating to any guaranty, any warranty, any pledge, any performance or completion bond or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregatematerial indemnity or similar obligation;
(ixxv) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilitiesLiabilities;
(xxvi) each Contract between any of the Acquired Companies and any Related Party of such entity, including, without limitation, any Contracts that provide for indemnification of any officer, director, employee or agent;
(xvii) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution not otherwise listed on Section 3.14 of the Company Products;
(xv) each Company Contract Disclosure Schedule that has a term of more than 60 30 days and that may not be terminated by any of the Company Acquired Companies (without penaltypayment, penalty or Liability) within 60 30 days after the delivery of a termination notice by the Company;
such entity (xviother than (A) each other Company Contract that was routine nondisclosure agreements entered into outside by any of the Acquired Companies in the Ordinary Course of Business Business, or was inconsistent with (B) other Contracts that do not contemplate or involve the Company’s past practices; andpayment or delivery of cash or other consideration in excess of $15,000);
(xviixviii) each Company Contract under which the Merger or any of the other Transactions would give rise to or expand any rights in favor of, or any obligations on the part of, any of the Acquired Companies or any other Person;
(xix) each Company Contract that contemplates or involves requires (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 15,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 15,000 in the aggregate.;
(bxx) any other material Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Acquired Companies’ past practices;
(xxi) each Company Contract that could reasonably be expected to have or result in a Material Adverse Effect on (A) any of the Acquired Companies, or (B) the ability of the Company to perform any of its obligations under this Agreement or to consummate any of the Transactions; and
(xxii) each Company Contract not otherwise listed on Section 3.14(a) through Section 3.14(a)(xxi) of the Company Disclosure Schedule, if a breach of such Contract or the termination of such Contract could reasonably be expected to have or result in a Material Adverse Effect. The Company has delivered or made available to Parent or its counsel accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 3.14 of the Company Disclosure Schedule provides an accurate description of the terms of each Company Material Contract that is not in written form. Each Company Material Contract is valid and in full force and effect, and, to the Knowledge of the Company, and is enforceable by the Acquired Company which is a party to such Contract in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(cb) Except as set forth in Section 2.14 3.14 of the Company Disclosure Schedule:
(i) the no Acquired Company has not materially violated or breached, or committed any material default under, any Company Material Contract, and, to the Knowledge of the Company, no other Person has materially violated or breached, breached or committed any material default under, any Company Material Contract;
(ii) to the Knowledge of the Company, no event has occurred and is continuingoccurred, and no circumstance or condition currently exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, : (A) result in a material violation or material breach of any of the provisions of any Company Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Company Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Company Material Contract, or (D) give any Person the right to cancel, terminate or modify any Company Material Contract;
(iii) the no Acquired Company has not received any written notice or other written communication regarding any actual or possible violation or breach of, or default under, any Company Material Contract; and
(iv) the Company has not waived any of its material rights under any Company Material Contract.
(c) The Company Contracts identified in the Company Disclosure Schedule collectively constitute all of the Contracts necessary to enable the Acquired Companies to conduct its business in the manner in which its business is currently being conducted.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (CannaVEST Corp.)
Material Contracts and Obligations. Set forth in Schedule 3.13 attached hereto is a list and brief description of all the following agreements to which SURGICOE or any of its Subsidiaries is a party or by which it is bound: (a) Section 2.14 each agreement which requires future expenditures by SURGICOE or any of its Subsidiaries in excess of $50,000 or which has a term or more than one year from the Company Disclosure Schedule lists Effective Time; (b) each employment agreement, consulting agreement, severance pay commitment and employee benefit, bonus, pension, profit sharing or similar plan or arrangement; (c) management, professional services or other similar agreements, contracts or commitment relating to such services being provided to SURGICOE or any of its Subsidiaries; (d) any agreement with a physician; (e) all license agreements and any agreement or commitment containing a covenant limiting or purporting to limit the following Company Contracts freedom of SURGICOE or any of its Subsidiaries to compete with any person or in effect any business in any geographic area or engage in any line of business; (f) any lease to which SURGICOE or any of its Subsidiaries is a party as lessor or lessee and which requires the future expenditure or receipt of in excess of $50,000, including as to each such lease the monthly rental called for (including escalations and adjustments upon any renewals) and the termination date hereof and renewal rights applicable thereto; (each g) except for trade indebtedness incurred in the ordinary course of business, any loan, credit agreement, promissory note or other instrument providing for or evidencing the Company Contracts required extension of credit to SURGICOE or any of its Subsidiaries in an amount of $10,000 or more; (h) every guaranty, indemnity or similar agreement or instrument whereunder SURGICOE or any of its Subsidiaries is or could be listed held liable for the indebtedness or other obligation of any third party (other than any Subsidiary) in clauses (i) through (xvii) that follows, a “Company Material Contract”):
an amount of $10,000 or more; (i) each Company Contract relating partnership agreement, operating agreement, management agreement, development agreement and other similar agreement by or among SURGICOE or any of its Subsidiaries, on the one hand, and, on the other hand, any other Subsidiary or any other owner of an interest in any Subsidiary; (j) environmental and title reports on any real property owned by SURGICOE or its Subsidiaries; (k) each contract or arrangement for the provision of surgery center or other facility services that is expected to account for 10% or more of the revenues of any Subsidiary in 2002; (l) agreements or arrangements for the sale of any of the assets, properties or rights of SURGICOE or any of its Subsidiaries (other than in the ordinary course of business) or for the grant of any preferential rights to purchase any of its assets, properties or rights or which requires the consent of any third party to the employment oftransfer and assignment of any of its assets, properties or rights that is material to the business of SURGICOE or any of its Subsidiaries; (m) any commitment, letter of intent or term sheet to acquire, develop or affiliate with any ambulatory surgery center or other health facility; and (n) any agreement to which any Shareholder, officer or director of SURGICOE, or any “affiliate” or “associate” of any such person (as such terms are defined in Rule 405 of Regulation C promulgated under the performance Securities Act of 1933, as amended), is presently a party, including without limitation any agreement or other arrangement providing for the furnishing of services by, any employee, consultant rental of real or independent contractor or involving any loans or advances by the Company to any officer, director or employee which are outstanding as of the date hereof;
(ii) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreements;
(iii) each Company Contract imposing any restriction on the Company’s right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personpersonal property from, or (C) develop or distribute any technology;
(iv) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Company Contract relating to the creation of any Encumbrance with respect to any material asset of Company;
(vi) each real property lease agreement;
(vii) each Company Contract involving or incorporating any guarantyotherwise requiring payments to, any pledge, any performance such person or completion bond, any indemnity or any surety arrangement;
(viii) each Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate
(ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(x) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution of the Company Products;
(xv) each Company Contract that has a term of more than 60 days and that may not be terminated by the Company (without penalty) within 60 days after the delivery of a termination notice by the Company;
(xvi) each other Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and
(xvii) each Company Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) The Company entity. SURGICOE has delivered or made available to Parent USP accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 each of the Company Disclosure agreements and instruments listed in Schedule provides an accurate description of the terms of each Company Material Contract that is not 3.13. All agreements, contracts, plans, leases, instruments, arrangements, licenses and commitments listed in written form. Each Company Material Contract is Schedule 3.13 are valid and in full force and effect, effect and neither SURGICOE nor any of its Subsidiaries has and, to the Knowledge knowledge of the Company, is enforceable by the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Section 2.14 of the Company Disclosure Schedule:
(i) the Company has not violated or breached, or committed any default under, any Company Material Contract, and, to the Knowledge of the CompanySURGICOE, no other Person party thereto has violated or breachedbreached any provision of, or committed any is in default under, any Company Material Contract;
(ii) to under the Knowledge of the Company, no event has occurred and is continuingterms of, and there are no circumstance facts or condition currently exists, that (with or without notice or lapse of time) will, or circumstances which would reasonably be expected to, (A) result in a material violation indicate that SURGICOE or material breach of any of the provisions of any Company Material Contract, (B) give any Person the right to declare a default its Subsidiaries will or exercise any remedy under any Company Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Company Material Contract, or (D) give any Person the right to cancel, terminate or modify any Company Material Contract;
(iii) the Company has not received any notice or other communication regarding any actual or possible violation or may be in such breach of, or default under, any Company Material Contract; and
(iv) such contract, agreement, instrument, arrangement, commitment, plan, lease or license, which invalidity, breach or default could have a material adverse effect on the Company has not waived any business, operations, prospects or financial condition of SURGICOE and its material rights under any Company Material ContractSubsidiaries taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (United Surgical Partners International Inc)
Material Contracts and Obligations. (a) Section 2.14 All of the following agreements, contracts, leases, licenses, mortgages, indentures, instruments, commitments (oral or written), indebtedness, liabilities and other obligations to which each Group Company Disclosure Schedule lists the following Company Contracts in effect as of the date hereof is a party or by which it or its assets is bound (each of the Company Contracts required to be listed in clauses (i) through (xvii) that followseach, a “Company Material Contract” and collectively, the “Material Contracts”):
(i) each Company Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor or involving any loans or advances have been made available for inspection by the Company to any officer, director or employee which Investor and its counsel and are outstanding as listed in Section 3.9(a) of the date hereof;
(ii) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreements;
(iii) each Company Contract imposing any restriction on the Company’s right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Company Contract relating to the creation of any Encumbrance with respect to any material asset of Company;
(vi) each real property lease agreement;
(vii) each Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate
(ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(x) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution of the Company Products;
(xv) each Company Contract that has a term of more than 60 days and that may not be terminated by the Company (without penalty) within 60 days after the delivery of a termination notice by the Company;
(xvi) each other Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and
(xvii) each Company Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) The Company has delivered or made available to Parent accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 of the Company Disclosure Schedule provides an accurate description of the terms of each Company Material Contract that is not in written form. Each Company Material Contract is valid and in full force and effect, and, to the Knowledge of the Company, is enforceable by the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Section 2.14 of the Company Disclosure Schedule:
(i) the Company has not violated having an aggregate value, cost or breachedamount, or committed imposing liability or contingent liability on any default underGroup Company, in excess of RMB20,000,000 other than the cash deposit agreements with banks the amounts of which are included in the Financial Statements (provided that only such Material Contracts under this subclause (i) having an aggregate value, cost or amount, or imposing liability or contingent liability on any Company Material ContractGroup Company, and, to in excess of RMB50,000,000 have been made available for inspection by the Knowledge Investor and its counsel and included in Section 3.9(a) of the Company, no other Person has violated or breached, or committed any default under, any Company Material ContractDisclosure Schedule);
(ii) to the Knowledge of the Companycontaining exclusivity, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) willnon-competition, or would reasonably be expected tosimilar clauses that impair, (A) result in a material violation restrict or material breach of impose conditions on any of the provisions of any Company Material Contract, (B) give any Person the Group Company’s right to declare a default offer or exercise any remedy under any Company Material Contractsell products or services in specified areas, (C) give any Person the right to accelerate the maturity or performance of any Company Material Contractduring specified periods, or (D) give any Person the right to cancel, terminate or modify any Company Material Contractotherwise;
(iii) entered not in the Company has not received any notice ordinary course of business and having an aggregate value, cost or other communication regarding any actual or possible violation or breach ofamount, or default underimposing liability or contingent liability on any Group Company, any Company Material Contract; andin excess of RMB1,000,000;
(iv) transferring or licensing any Proprietary Assets to or from any Group Company other than agreements for commercially available off-the-shelf software that has not been modified or customized for any Group Company;
(v) termination of which would be reasonably likely to have a Material Adverse Effect.
(vi) entered between the Company, Jingdong Century and Tianjin Star East, on the one hand, and any of the PRC Affiliates or individual shareholders of the PRC Affiliates, on the other hand (the “VIE Agreements”),
(vii) involving any of the Key Employees, directors, senior officers or shareholders of any Group Company (provided that Section 3.9(a) of the Disclosure Schedule included only such Material Contracts under this subclause (vii) other than those relating employment or service arrangements in the ordinary course of business the amounts of which have been included in the Financial Statements);
(viii) involving any governmental authority (provided that Section 3.9(a) of the Disclosure Schedule included only such Material Contracts that are not in the ordinary course of business);
(ix) terminating or requiring the consent of a third party as a result of the transactions contemplated by this Agreement or the Ancillary Agreements;
(x) obligating such Group Company to share, license or develop any product or technology;
(xi) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any securities of any Group Company other than (a) those relating to the repurchase of Old Shares as contemplated under Section 9.7 hereof, (b) those agreements pursuant to which the employees, directors, consultants or advisors of the Group Companies have been allocated with any of the ESOP Shares pursuant to the employee and advisor stock option plan from time to time duly adopted by the Company and (c) those agreements the transactions contemplated under which have been consummated and reflected in the Financial Statements); or
(xii) involving the acquisition or sale of a business, a merger, consolidation, amalgamation or similar transaction, or a partnership, joint venture, or similar arrangement other than those agreements the transactions contemplated under which have been consummated and reflected in the Financial Statements.
(b) Each Material Contract constitutes the valid and legally binding obligation of the Group Companies, enforceable in accordance with its terms, and the performance of which does not violate any applicable statute, law, injunction, judgment, decree, order, ruling, assessment or writ of any governmental authority, and is in full force and effect. Each Group Company has not waived any duly performed all of its obligations under each Material Contract in all material rights respects to the extent that such obligations to perform have accrued, and none of the Group Companies has breached, nor does any Seller Party have any knowledge of any claim or threat that (i) any term or condition of any Material Contract has been breached or (ii) any other agreement or understanding to which any Group Company is a party or by which its properties are bound has been breached, in each case which would reasonably be expected to impose liability on any Group Company in excess of RMB50,000,000. No Group Company has given notice (whether or not written) that it intends to terminate a Material Contract or that any other party thereto has materially breached, violated or defaulted under any Material Contract. No Group Company has received any notice (whether or not written) that (i) it has breached, violated or defaulted under any Material Contract or (ii) any other party thereto intends to terminate such Material Contract.
(c) Without limitation to the foregoing subclause (a), none of the Group Companies has breached, and no facts or circumstances are in existence which, with or without the passage of time, could lead to any of the Group Companies being in breach of: (i) the Series A Preferred Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (ii) the Series B Preferred Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (iii) Ordinary Share Purchase Agreement, dated December 31, 2009, by and among the Company, Xxx Smart, Jingdong Century, certain other PRC Subsidiaries, Jingdong 360, the Founder and Tiger Global Five 360 Holdings, (iv) Ordinary Share Purchase Agreement, dated March 17, 2010, by and among the Company, the Founder, Kaixin Asia Limited and Accurate Way Limited, (v) May 2010 Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (vi) Rescission Agreement, dated September 3, 2010, by and among the Company, Xxx Smart, Tiger 360Buy and certain individual shareholders, (vii) Share Purchase Agreement, dated September 3, 2010, by and among Xxx Smart, Tiger 360Buy and certain individual shareholders, (viii) Series C Preferred Share Subscription Agreement (as defined in the Ninth Shareholders Agreement), (ix) the Warrants (as defined in the Ninth Shareholders Agreement), which have been fully and duly exercised by the relevant parties (or its Affiliates) to the Warrants pursuant to the terms and conditions in the respective Warrant, (x) First DST Global Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (xi) Second DST Global Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (xii) Sequoia Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement), (xiii) Classroom Ordinary Share Purchase Agreement (as defined in the Ninth Shareholders Agreement) and (xiv) all shareholder rights and voting agreements of the Company, including the Ninth Shareholders Agreement; and none of the Group Companies has any liability (including any contingent liability) under any of the foregoing agreements.
Appears in 1 contract
Samples: Execution Version (JD.com, Inc.)
Material Contracts and Obligations. (a) Section 2.14 Schedule 3.13 sets forth a list of the following agreements to which a Company Disclosure Schedule lists the following Company Contracts Party is a party or by which it is bound, and which are in effect or binding on a Company Party as of the date hereof of this Agreement (each of the Company Contracts such contracts or agreements described below or required to be listed in clauses (i) through (xvii) that followsdescribed below, a “Company Material ContractContracts”):
(ia) each all contracts (whether written or unwritten) that require the payment by a Company Contract relating to Party of $100,000 or more from and after the employment of, Closing in any one (1) year following the Closing and that have a remaining stated term in excess of one (1) year or the performance of services by, any employee, consultant or independent contractor or involving any loans or advances are not terminable by the applicable Company to any officer, director Party without penalty or employee which are outstanding as of premium within one (1) year from the date hereof.
(b) all contracts (whether written or unwritten), within the following categories:
(i) contracts with participating members in the group purchasing programs offered by or on behalf of the Company Parties requiring aggregate payments to any such participating member by any of the Company Parties in excess of $100,000 during their remaining term following the Closing;
(ii) each Company Contract relating to contracts that contain material exclusivity, non-competition or “most-favored nation” provisions that limit in any material respect the acquisition, transfer, use, development, sharing or license freedom of any (A) technology, (B) Intellectual Property Company Party to compete in any line of business or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreementswith any Person or in any area;
(iii) all agreements relating to any Intellectual Property, including, but not limited to, the Company Owned IP, Company In-Licenses and Company Out-Licenses, that, in each case, are material to the operation of either Company Contract imposing any restriction on the Company’s right or ability (A) to compete with any other Personand its Subsidiaries, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologytaken as a whole;
(iv) each all contracts for leases, subleases, rental agreements, contracts of sale tenancies or licenses of real property providing for lease payments by any Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationshipParty in excess of $100,000 per annum;
(v) each Company Contract any agreement or indenture relating to the creation borrowing of money by any Company Party that would, if remaining outstanding on the Closing Date, be Indebtedness hereunder or to the mortgage or pledge of, or the attachment of a Lien on, any material Property of any Encumbrance with respect to any material asset of CompanyCompany Party;
(vi) each real property lease agreement;any guaranty by a Company Party of any third-party obligation; and
(vii) each all employment agreements between a Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate
(ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(x) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company Party and any officer, director Employees of a Company Party (or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution individuals employed by Affiliates of the Company Products;
(xv) each Company Contract that has a term of Parties pursuant to which such individuals provide more than 60 days and fifty percent (50%) of their services to a Company Party or it is anticipated will provide services to a Company Party after Closing) that may are not be terminated by terminable at the Company (without penalty) within 60 days after the delivery will of a termination notice by the Company;
(xvi) each other Company Contract Party or that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and
(xvii) each Company Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess provide for severance of $100,000 in the aggregate, 50,000 or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) more. The Company Seller has delivered or made available to Parent accurate and complete copies the Purchaser a copy of all written Company Material Contracts, including all amendments thereto. Section 2.14 each of the Company Disclosure Schedule provides an accurate description foregoing agreements or arrangements which has been reduced to writing and a written summary of each oral agreement or arrangement. Each of the terms of each Company Material Contract that foregoing agreements and arrangements is not in written form. Each Company Material Contract is valid valid, binding and in full force and effect, effect as it pertains to the Company Party that is a party thereto and, to the Seller’s Knowledge, the counterparty thereto, without any current or reasonably anticipated material violation, breach or default of any Company Party or counterparty thereunder. The Seller has no Knowledge of the Company, is enforceable any breach or threatened breach by the Company in accordance with its terms, subject other party or parties to (i) laws any of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) foregoing agreements or arrangements. Except as set forth in Section 2.14 on Schedule 3.13, none of the Company Disclosure Schedule:
(i) Seller or the Company Parties has received written notice nor do any of them have reasonable grounds to believe that any party to any such agreements or arrangements intends to cancel or terminate any of such agreements or arrangements or to exercise or not violated exercise any options thereunder or breached, to seek a renegotiation or committed any default under, any Company Material Contract, and, to the Knowledge of the Company, no other Person has violated or breached, or committed any default under, any Company Material Contract;
(ii) to the Knowledge of the Company, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) result in a material violation or material breach adjustment of any of the material provisions of any Company Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Company Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Company Material Contract, or (D) give any Person the right to cancel, terminate or modify any Company Material Contract;
(iii) the Company has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Material Contract; and
(iv) the Company has not waived any of its material rights under any Company Material Contractthereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Premier, Inc.)
Material Contracts and Obligations. (a) Section 2.14 All of the following agreements, contracts, leases, licenses, mortgages, indentures, instruments, commitments (oral or written), indebtedness, liabilities and other obligations to which each Group Company Disclosure Schedule lists the following Company Contracts in effect as of the date hereof is a party or by which it or its assets is bound (each of the Company Contracts required to be listed in clauses (i) through (xvii) that followseach, a “Company Material Contract” and collectively, the “Material Contracts”):
(i) each Company Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor or involving any loans or advances have been made available for inspection by the Company to any officer, director or employee which Investors and their counsel and are outstanding as listed in Section 3.9(a) of the date hereof;
(ii) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any (A) technology, (B) Intellectual Property or (C) Intellectual Property Right other than pursuant to the Company’s standard customer agreements;
(iii) each Company Contract imposing any restriction on the Company’s right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Company Contract relating to the creation of any Encumbrance with respect to any material asset of Company;
(vi) each real property lease agreement;
(vii) each Company Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Company Contract resulting in the Company incurring or guarantying any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations in the Ordinary Course of Business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate
(ix) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(x) each Company Contract constituting or relating to a Government Contract;
(xi) each Company Contract that contains “most favored nation” or preferred pricing provisions;
(xii) each Company Contract providing for indemnification by the Company with respect to infringements of proprietary rights other than pursuant to the Company’s standard customer agreement;
(xiii) each Contract between the Company and any officer, director or 10%-or-greater stockholder or any affiliate thereof other than agreements entered into in the Ordinary Course of Business;
(xiv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for distribution of the Company Products;
(xv) each Company Contract that has a term of more than 60 days and that may not be terminated by the Company (without penalty) within 60 days after the delivery of a termination notice by the Company;
(xvi) each other Company Contract that was entered into outside the Ordinary Course of Business or was inconsistent with the Company’s past practices; and
(xvii) each Company Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate.
(b) The Company has delivered or made available to Parent accurate and complete copies of all written Company Material Contracts, including all amendments thereto. Section 2.14 of the Company Disclosure Schedule provides an accurate description of the terms of each Company Material Contract that is not in written form. Each Company Material Contract is valid and in full force and effect, and, to the Knowledge of the Company, is enforceable by the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Section 2.14 of the Company Disclosure Schedule:
(i) the Company has not violated having an aggregate value, cost or breachedamount, or committed imposing liability or contingent liability on any default underGroup Company, in excess of RMB20,000,000 other than the cash deposit agreements with banks the amounts of which are included in the Financial Statements (provided that only such Material Contracts under this subclause (i) having an aggregate value, cost or amount, or imposing liability or contingent liability on any Company Material ContractGroup Company, and, to in excess of RMB50,000,000 have been made available for inspection by the Knowledge Investors and their counsel and included in Section 3.9(a) of the Company, no other Person has violated or breached, or committed any default under, any Company Material ContractDisclosure Schedule);
(ii) to the Knowledge of the Companycontaining exclusivity, no event has occurred and is continuing, and no circumstance or condition currently exists, that (with or without notice or lapse of time) willnon-competition, or would reasonably be expected tosimilar clauses that impair, (A) result in a material violation restrict or material breach of impose conditions on any of the provisions of any Company Material Contract, (B) give any Person the Group Company’s right to declare a default offer or exercise any remedy under any Company Material Contractsell products or services in specified areas, (C) give any Person the right to accelerate the maturity or performance of any Company Material Contractduring specified periods, or (D) give any Person the right to cancel, terminate or modify any Company Material Contractotherwise;
(iii) entered not in the Company has not received any notice ordinary course of business and having an aggregate value, cost or other communication regarding any actual or possible violation or breach ofamount, or default underimposing liability or contingent liability on any Group Company, any Company Material Contract; andin excess of RMB1,000,000;
(iv) the transferring or licensing any Proprietary Assets to or from any Group Company other than agreements for commercially available off-the-shelf software that has not waived been modified or customized for any Group Company;
(v) termination of which would be reasonably likely to have a Material Adverse Effect.
(vi) entered between the Company, Jingdong Century and Tianjin Star East, on the one hand, and any of the PRC Affiliates or individual shareholders of the PRC Affiliates, on the other hand (the “VIE Agreements”),
(vii) involving any of the Key Employees, directors, senior officers or shareholders of any Group Company (provided that Section 3.9(a) of the Disclosure Schedule included only such Material Contracts under this subclause (vii) other than those relating employment or service arrangements in the ordinary course of business the amounts of which have been included in the Financial Statements);
(viii) involving any governmental authority (provided that Section 3.9(a) of the Disclosure Schedule included only such Material Contracts that are not in the ordinary course of business);
(ix) terminating or requiring the consent of a third party as a result of the transactions contemplated by this Agreement or the Ancillary Agreements; or
(x) obligating such Group Company to share, license or develop any product or technology.
(b) Each Material Contract constitutes the valid and legally binding obligation of the Group Companies, enforceable in accordance with its material terms and is in full force and effect. None of the Group Companies has breached, nor does any Seller Party have any knowledge of any claim or threat that (i) any term or condition of any Material Contract has been breached or (ii) any other agreement or understanding to which any Group Company is a party or by which its properties are bound has been breached, in each case which would reasonably be expected to impose liability on any Group Company in excess of RMB50,000,000.
(c) Without limitation to the foregoing subclause (a), none of the Group Companies has breached, and no facts or circumstances are in existence which, with or without the passage of time, could lead to any of the Group Companies being in breach of: (i) the Series A Preferred Share Purchase Agreement (as defined in the Eighth Shareholders Agreement), (ii) the Series B Preferred Share Purchase Agreement (as defined in the Eighth Shareholders Agreement), (iii) Ordinary Share Purchase Agreement, dated 31 December 2009, by and among the Company, Xxx Smart, Jingdong Century, certain other PRC Subsidiaries, Jingdong 360, the Founder and Tiger Global Five 360 Holdings, (iv) Ordinary Share Purchase Agreement, dated 17 March 2010, by and among the Company, the Founder, Kaixin Asia Limited and Accurate Way Limited, (v) May 2010 Ordinary Share Purchase Agreement (as defined in the Eighth Shareholders Agreement), (vi) Rescission Agreement, dated September 3, 2010, by and among the Company, Xxx Smart, Tiger 360Buy and certain individual shareholders, (vii) Share Purchase Agreement, dated September 3, 2010, by and among Xxx Smart, Tiger 360Buy and certain individual shareholders, (viii) Series C Preferred Share Subscription Agreement (as defined in the Eighth Shareholders Agreement), (ix) the Warrants (as defined in the Eighth Shareholders Agreement), (x) First DST Global Ordinary Share Purchase Agreement (as defined in the Eighth Shareholders Agreement), (xi) Second DST Global Ordinary Share Purchase Agreement (as defined in the Eighth Shareholders Agreement), (xii) Sequoia Ordinary Share Purchase Agreement (as defined in the Eighth Shareholders Agreement) and (xiii) all shareholder rights and voting agreements of the Company, including the Eighth Shareholders Agreement; and none of the Group Companies has any liability (including any contingent liability) under any Company Material Contractof the foregoing agreements.
Appears in 1 contract
Samples: Execution Version (JD.com, Inc.)
