Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto. (b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company and, to the knowledge of the Company, the counterparties thereto are not in material breach of, or default under, any Material Contract. (c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 2 contracts
Samples: Business Combination Agreement (Valens Semiconductor Ltd.), Business Combination Agreement (PTK Acquisition Corp.)
Material Contracts; No Defaults. (a) Section 3.7(a3.18 of the Company Disclosure Schedule sets forth:
(i) each Contract currently in effect that involves performance of services by, or delivery of goods or materials to, the Company for an amount or value in excess of $15,000;
(ii) each Contract currently in effect that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of the Company in excess of $15,000;
(iii) each Contract currently in effect affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(iv) each Contract currently in effect relating to the license, sublicense, use, disclosure and development and covenants not-to-xxx with respect to Intellectual Property;
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vii) each Contract currently in effect containing covenants that in any way purport to restrict the business activity of the Company or any Affiliate of the Company or limit the freedom of the Company or any Affiliate of the Company to engage in any line of business or to compete with any Person;
(viii) each Contract currently in effect that provides any customer of Company with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to the other customer(s) of the Company, including contracts containing “most favored nation” provisions;
(ix) each Contract currently in effect providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power of attorney that is currently effective and outstanding;
(xi) each Contract currently in effect entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(xii) each Contract for capital expenditures in excess of $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. The Contracts listed on Schedule 3.18 are referred to in this Agreement as “Material Contracts”.
(b) No Affiliate of the Company and no Related Person of any officer or director of the Company has any rights, obligations or liability under any Contract that relates to the business of, or any of the assets owned or used by, the Company; and no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the Business, or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Each Material Contract identified or required to be identified in Section 3.18(a) of the Company Disclosure Schedules sets forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and Schedule is in full force and effect and (ii) the applicable Group Company and, is valid and enforceable in accordance with its terms.
(d) The Company is, and at all times since January 1, 2013, has been, in full compliance with all applicable terms and requirements of each Material Contract under which the Company has or had any obligation or liability or by which the Company, or any of the assets owned or used by the Company is or was bound; to the knowledge Knowledge of the Company, each other Person that has or had any obligation or liability under any Material Contract under which the counterparties thereto are Company has or had any rights is, and at all times since January 1, 2013, has been, in full compliance with all applicable terms and requirements of such Contract; no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Material Contract; and the Company has not in material given, or received, at any time since January 1, 2013, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Material Contract.
(ce) None of There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Group Companies has ever been suspended Company under current or disbarred from bidding on Contracts or subcontracts for or completed Material Contract with any Governmental Entity (“Government Contracts”) Person and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies Person has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids made written demand for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businesssuch renegotiation.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Trans World Entertainment Corp)
Material Contracts; No Defaults. (a) Section 3.7(aSchedule 4.9 contains a listing (under headings corresponding to the sub-clauses below) of the Company Disclosure Schedules sets forth a list of all following Contracts (whether written or oral) to which a Group Company an Acquired Entity is a party as or by which an Acquired Entity is bound or to which any asset of an Acquired Entity is subject or under which an Acquired Entity has any rights or the date hereof: performance of which is Guaranteed by an Acquired Entity, other than any Contracts described in Section 4.10 (collectively, with the Leases, the Ancillary Lease Documents, the Insurance Policies and the Contracts described in Section 4.10, the “Material Contracts”):
(i) Each Contract (other than (A) purchase orders with suppliers, contractors, subcontractors or customers entered into in the ordinary course of business and (B) Contracts of the type (without giving effect to dollar thresholds) described in other clauses of this Section 4.9(a)) that any Acquired Entity reasonably anticipates will involve aggregate payments or consideration furnished by or to such Acquired Entity of more than $25,000 in any year;
(ii) Each Contract for the sale of Company services Debt (including any Fidelity Bonds or indemnity agreements) or for the purchase lending or investing of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, funds;
(iii) containing Each Contract for any indemnification that represents a completed or future disposition or acquisition of material obligation of a Group Company assets or properties by any Acquired Entity (other than sales of inventory in the ordinary course of business), or any completed or future merger or business combination with respect to any Acquired Entity;
(iv) under Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property (except personal property leases and installment and conditional sales agreements have a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) Each Contract requiring future capital expenditures by any Acquired Entity in excess of $25,000;
(vi) Each joint venture, partnership or Contract involving a sharing of profits or losses with any other Person or providing for royalties or payments to or by any Person based on sales, purchases or profits (other than direct payments for goods or services);
(vii) Each collective bargaining agreement or agreement with any labor organization, union or other employee representative of a group of Acquired Entity employees;
(viii) Each Contract for the employment or provision of services to any Acquired Entity on a full time, part time, consulting, agency, or other basis, or which a Group Company has permitted any material asset to become subject to a Lien provides for severance, retention, change in control, special bonuses, special benefits or special remuneration (including Permitted Liensissuance or grants of Equity) other than that are or would become payable, increased or accelerated by reason of this Agreement or the consummation of the Transactions or that otherwise will remain Liabilities of any Acquired Entity following the Closing;
(ix) Each Contract pursuant to which outsourced or temporary employees or independent contractors or consultants are provided or made available to any Acquired Entity;
(x) Each Contract containing any covenant that restricts or purports to restrict the business activity of any Acquired Entity or limits or purports to limit the freedom of any Acquired Entity to engage in any line of business or to compete with any Person (including any Contract granting or purporting to grant to any counterparty any rights of first refusal, first negotiation, first offer or similar rights);
(xi) Each Contract with “most favored nation” pricing or similar provisions or material discounts on services or products or future services or products;
(xii) Each material Contract relating to the advertising or marketing of any Acquired Entity’s services or products;
(xiii) Each Contract that contains or provides for an express undertaking by any Acquired Entity to be responsible for consequential or punitive damages;
(xiv) Each Contract imposing any confidentiality or secrecy obligations on any Acquired Entity (excluding standard confidentiality or secrecy provisions contain in agreements with contractors, subcontractors, customers or vendors entered into in the ordinary course of business, );
(vxv) that evidences indebtedness Each Contract providing for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests indemnification of any other Person officer, director, employee or agent of any Acquired Entity (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, commercial Contracts entered into in the ordinary course of businessbusiness with the Companies’ vendors, customers or partners and the Insurance Policies);
(xvi) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Each Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract Acquired Entity (A) that is grants a settlementPerson a license, conciliation right or similar agreement with other permission to use any Governmental Entity Intellectual Property or (B) pursuant receives from any Person a license, right or other permission to use any Intellectual Property (other than Off-the-Shelf Software);
(xvii) Each Contract regarding ownership or rights with respect to any Intellectual Property which the Company was produced or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreementdeveloped by employees, (ix) any Contract that is for the employment contractors or engagement consultants of any directors, employees Acquired Entity;
(xviii) Each Contract containing continuing obligations of any Acquired Entity relating to any resolution or independent contractors at annual compensation in excess settlement of $500,000 other than any actual or threatened Action;
(Axix) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Each Contract with any Person (A) pursuant to which any Group Company may be required Seller or any Related Person of any Seller (other than the Acquired Entities) is a party or otherwise has any rights, obligations or interests; and
(xx) Each Contract to pay milestoneswhich there are commitments, royalties agreements or undertakings with insurance brokers or other contingent payments in excess third parties that would reasonably be expected to impair or adversely affect the consummation of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture the Transactions;
(xxi) Each Contract not otherwise identified (or other similar occurrences, developments, activities or events or (Bexcepted) under which any Group Company grants above that is material to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments theretoAcquired Entity.
(b) (i) A correct and complete copy of each Material Contract and a written summary setting forth the terms and conditions of each oral Material Contract, if any, have been Made Available to Purchaser. Each Material Contract is valid and binding on Contract, with respect to the applicable Group Company Acquired Entities and, to the knowledge of the CompanyCompanies, the counterparty other parties thereto, and is legal, valid, binding, enforceable, in full force and effect and (ii) will continue to be so on identical terms following the applicable Group Company Closing Date, except as such enforceability may be limited by bankruptcy, insolvency and the rights of creditors generally or by general principles of equity. No Acquired Entity is, and, to the knowledge of the CompanyCompanies, the counterparties no other party thereto are not is, in material breach ofor default under any Material Contract. To the knowledge of the Companies, no event has occurred that with or without notice or lapse of time or both would constitute a material breach or default under, or permit termination, modification or acceleration of, any Material Contract.
(c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or. No Company has, and, to the knowledge of the CompanyCompanies, threatened against no other party thereto has, repudiated any provision of the Group Companies any Material Contract or any of such Group Company’s directors, officers or employees. None of the Group Companies has received given any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businesstermination thereunder.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules Schedule 4.12 sets forth a complete and accurate list of all of the following Contracts (whether written or oral) to which a Group any Company Entity is a party or by which it is bound, as of the date hereof: hereof (such Contracts, together with all Contracts concerning the Leased Real Property disclosed in Schedule 4.18(b), and all Contracts falling into the following categories and entered into by a Company Entity after the date hereof in accordance with Section 6.02, being “Material Contracts”):
(i) Contracts for the sale or purchase of Company services or for the purchase any of products or services of at least any Company Entity which provides for payments by or to such Company Entity in excess of $500,000 per during calendar year 2020 or $1,000,000 that are expected to involve more than such amount in calendar year 2021 (other than purchase orders entered into or issued in the aggregate, ordinary course of business);
(ii) that purports Contracts for the grant to limitany Person of any most-favored nations, in any material respectpriority, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability exclusive rights to solicit customers or the ability to sell or purchase any product, property of such products or other asset services (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business);
(iii) Contracts for joint ventures, partnerships or sharing of profits, and Contracts for joint or shared marketing activities or expenses;
(iv) under which Contracts containing covenants obligating a Group Company has permitted Entity not to compete in any material asset line of business or with any Person in any geographical area;
(v) Contracts containing covenants obligating a Company Entity not to become subject solicit or hire any Person with respect to a Lien employment (including Permitted Liens) other than Contracts with contractor agencies or otherwise in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, );
(vi) involving Contracts relating to the acquisition or dispositiondisposition by a Company Entity (by merger, directly purchase of stock or indirectly, by merger assets or otherwise, of assets or Equity Interests ) of any other Person line of business or a material amount of stock or assets (other than another Group Company) with an aggregate value Contracts to purchase inventory in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, bulk in the ordinary course of business), in each case if entered into in the past three (3) pursuant years, or under which any Liabilities remain outstanding;
(vii) Contracts evidencing Indebtedness in excess of $200,000 (whether incurred, assumed, guaranteed or secured by any asset);
(viii) except for standard indemnification provisions in Contracts entered in the ordinary course of business with customers or suppliers, any Contract under which any Company Entity is required to which provide continuing indemnification or a Group Company has material ongoing guarantee of obligations of any Person (other than confidentiality obligations)the other Company Entity) or the assumption of any Tax, or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price environmental or other contingent or deferred payment obligation exceeding $500,000, (vii) Liability of any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, Person;
(ix) any Contract that is for under which any Company Entity has advanced or loaned any amount to any of its managers, directors or executive officers in the employment past three (3) years and such advance or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, loan remains outstanding;
(x) agreement under which it is lessee any Contract between any Company Entity, on the one hand, and any of their respective directors or holds or operates any personal property owned by any executive officers, on the other party, except for any lease of personal property under which hand (other than the aggregate annual rental payments do not exceed $500,000, Employment Contracts and indemnification agreements that have been made available to Acquiror);
(xi) agreement pursuant all Employment Contracts which are not cancellable without material penalty (including any severance or other termination payment) or without more than thirty (30) days’ notice (other than offer letters that do not deviate in any material respect from the standard offer letter provided to which the Company is granted a lease in, a sublease in, Acquiror);
(xii) Contracts with independent contractors or the right to use or occupy any land or building consultants that require the Group Companies to make annual cash payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant 150,000 to which a Company Entity is a party and which are not cancellable without material penalty (including any Group Company may be required to pay milestones, royalties termination payment) or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or without more than thirty (B30) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, days’ notice;
(xiii) that establish a joint venture, partnership collective bargaining or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), similar labor agreements;
(xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or with a Governmental Authority;
(xv) agreement any Contract under which it any Company Entity is lessor obligated to make any capital commitment or expenditure in excess of $200,000 individually or permits $500,000 in the aggregate, during any third party twelve (12)-month period;
(xvi) Contracts for the storage, treatment, disposal, recycling, investigation, removal or remediation of Hazardous Materials; and
(xvii) any other Contract that is material to hold any Company Entity, provides for consideration in excess of $200,000 annually or operate any personal property owned $500,000 in the aggregate and is not previously disclosed pursuant to this Section 4.10, Section 4.18 or controlled by it Section 4.12(b) (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts other than purchase orders entered into after or issued in the date ordinary course of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”business). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (iExcept as set forth in Schedule 4.12(b) Each or Schedule 4.18(b) below, each Material Contract is valid valid, binding and binding enforceable on the applicable Group Company andEntity in accordance with its terms, assuming the validity and enforceability of such agreement against the counterparties and except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or in equity). None of the Company Entities or, to the knowledge Knowledge of the Company, the counterparty thereto, and any other party thereto is in full force and effect and breach of or default under (ii) the applicable Group Company and, or is alleged to the knowledge be in breach of the Company, the counterparties thereto are not in material breach of, or default under) in any material respect, or has provided or received any written notice of any intention to terminate, any Material Contract.
. Complete and correct copies of each Material Contract (cincluding all modifications, amendments and supplements thereto) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, made available to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessAcquiror.
Appears in 1 contract
Samples: Merger Agreement (Acamar Partners Acquisition Corp.)
Material Contracts; No Defaults. (a) Except for the Government Contracts and Government Subcontracts, Section 3.7(a2.8(a) of the Company Sellers' Disclosure Schedules sets forth Letter contains a list complete and accurate list, and the Sellers have delivered or made available to the Buyer true and complete copies, of all Contracts of the following contracts, agreements, commitments, arrangements or plans (including all amendments, supplements and modifications thereto, whether written or oral) (x) to which a Group the Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregateparty, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (ivy) under which a Group the Company has permitted or may acquire any material asset to rights or has or may become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, any obligations or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity liabilities or (Bz) pursuant to by which the Company or any of its Subsidiaries will have assets, properties or rights are or may become bound or subject:
(i) each agreement or series of related agreements intended to be treated as one agreement for the purchase of materials, supplies, goods, services, equipment or other assets providing for aggregate payments by the Company over the remaining term of such agreement or related agreements of $250,000 or more;
(ii) each sales, distribution, agency or other similar agreement providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets that provides for aggregate payments to the Company over the remaining term of the agreement of $250,000 or more;
(iii) each agreement relating to Indebtedness (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(iv) each joint venture, partnership, limited liability company or other agreements or arrangements involving a sharing of profits, losses, costs or liabilities by the Company with any other Person;
(v) each agreement or series of related agreements intended to be treated as one agreement, including any option agreements, relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material outstanding obligation real property (whether by merger, sale of stock, sale of assets or otherwise);
(vi) each agreement that (A) limits the freedom of the Company to compete in any line of business or with any Person or in any area or which would so limit the freedom of the Buyer, any member of the EDO Group or the Company after the date Closing or (B) contains exclusivity obligations or restrictions binding on the Company or that would be binding on the Buyer or any member of this Agreementthe EDO Group after the Closing;
(vii) each agreement relating to any interest rate, currency or commodity derivatives or hedging transaction;
(viii) each agreement (including any "take-or-pay" or keepwell agreement) under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of the Company or (B) the Company has directly or indirectly guaranteed liabilities or obligations of any other Person (in each case other than endorsements for the purpose of collection in the Ordinary Course of Business);
(ix) any Contract that is each agreement for the employment or engagement of any directors, employees or independent contractors at annual compensation capital expenditures in excess of $500,000 250,000;
(x) each agreement that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(xi) each agreement, commitment or arrangement providing for commission or royalty payments to any Person based on sales, purchases or profits (as opposed to direct payments for goods or services);
(xii) each powers of attorney issued by or on behalf of the Company that is currently in effect;
(xiii) each IP Contract; and
(xiv) all other than agreements, commitments, arrangements or plans that are (A) Contracts that can be terminated by not made in the Company without cost or penalty Ordinary Course of Business or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant material to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) Each agreement, commitment, arrangement or plan disclosed in the Sellers' Disclosure Letter or required to be disclosed thereon pursuant to this Section or Sections 2.9, 2.10, 2.15, 2.17 or 2.24 hereof (ieach a "Material Contract") Each Material Contract is valid a valid, binding and binding on the applicable Group Company and, to the knowledge enforceable agreement of the Company, the counterparty thereto, Company and is in full force and effect effect. Except as set forth in Section 2.8(b) of the Sellers' Disclosure Letter:
(i) the Company is, and at all times since the date of the respective Material Contract (including any Material Contracts that have been superseded by the Material Contracts currently in effect), (A) has been in full compliance with all material terms and material requirements of each Material Contract, (B) has complied in all material respects with all requirements of applicable Law pertaining to each Material Contract, and (C) any representations, warranties and certifications executed, acknowledged, contained or set forth in each Material Contract were true, correct and complete in all material respects as of their effective date;
(ii) the applicable Group Company and, to the knowledge Knowledge of the CompanySellers, each other Person that has or had any obligation or liability under any Material Contract under which the Company has or had any rights is, and at all times since the conclusion of such Material Contract has been, in full compliance with all applicable material terms and requirements of such Material Contract, and none of such Persons is in default or breach in any material respect under (or is alleged to be in default or breach in any material respect under) any of the terms of such Material Contract;
(iii) no event or circumstance has occurred that, with or without notice or lapse of time or both, would constitute any event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder;
(iv) since the date of any particular Material Contract (including any Material Contracts that have been superseded by the Material Contracts currently in effect), the counterparties thereto are Company has not in material given to or received from any other Person any notice regarding any actual, alleged, possible or potential violation or breach of, or default under, any such Material Contract or any intention to terminate any such Material Contract; and
(v) there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate in any material respect any Material Contract (including, without limitation, any material amounts paid or payable to or by the Company under any current or completed Material Contracts), and no Person has made written demand for such renegotiation.
(c) Each of the Material Contracts relating to the sale, design, manufacture or provision of products or services by the Company have been entered into in the Ordinary Course of Business and without the commission of any act alone or in concert with any other Person, and without any consideration having been paid or promised that is or would be in violation of any applicable Law. To the Knowledge of the Sellers, all active orders under each such Material Contract can be completed at a profit (it being understood that whether any such order is completed at a profit shall be determined without giving effect to the transactions contemplated by this Agreement), within the time specified therein, without significant increase in personnel currently employed by or assets currently owned by the Company.
(d) Except as set forth in Section 2.8(d) of the Sellers' Disclosure Letter:
(i) None of the Group Companies Sellers (and no Related Person of any Seller) has ever been suspended or disbarred from bidding on may acquire any rights, or has or may become subject to any obligation or liability, under any Material Contract, or any of the assets owned or used by the Company; and
(ii) no shareholder, director, officer or employee of the Company nor, to the Knowledge of the Sellers, any agent, consultant or contractor of the Company, is bound by any Material Contract that purports to limit the ability of such shareholder, director, officer, agent, employee, consultant or contractor to (A) engage in or continue any conduct, activity, or practice relating to the Business or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(e) Section 2.8(e) of the Sellers' Disclosure Letter contains a true and complete list (in the case of classified Government Contracts or subcontracts for Government Subcontracts, without specifying the counterparty thereto), and the Sellers have delivered or made available to the Buyer (or, in the case of classified Government Contracts or Government Subcontracts, made available to the Buyer's personnel with any Governmental Entity appropriate security clearances) true and complete copies, of all Government Contracts (“Government Contracts”including, without limitation, options) and no suspension Government Subcontracts currently in force. Except as set forth in Section 2.8(e) of the Sellers' Disclosure Letter,
(A) the Company has complied with all material terms and conditions of each Government Contract or debarment actions have been commenced Government Subcontract, (B) the Company has complied in all material respects with all requirements of any applicable Law and the terms of any agreements pertaining to each Government Contract or Government Subcontract and (C) all representations, warranties and certifications executed, acknowledged, contained or set forth in each Government Contract or Government Subcontract were true, complete and correct in all material respects as of their effective date, and the Company has complied in all respects with all such representations, warranties and certifications;
(ii) (A) neither the U.S. Government nor any prime contractor, subcontractor or other Person has notified the Company in writing or, to the knowledge Knowledge of the Sellers, orally, that the Company has breached or violated any requirement of any applicable Law or any certification, representation, clause, provision or other requirement pertaining to any Government Contract or Government Subcontract, (B) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to any Government Contract or Government Subcontract, (C) no material cost incurred by the Company pertaining to any Government Contract or Government Subcontract has been questioned or challenged by representatives of the Administrative Contracting Officer or the Defense Contract Audit Agency, has been disallowed by the U.S. Government, or has been or now is, the subject of any investigation, and (D) no amount of money due to the Company in connection with any Government Contract or Government Subcontract has been withheld or set off, nor has any claim been made to withhold or set off money, and the Company is entitled to all progress payments received with respect thereto;
(A) neither the Company, threatened against nor any of the Group Companies or any of such Group Company’s its shareholders, directors, officers or employees. None , nor, to the Knowledge of the Group Companies Sellers, any of its consultants or agents, is or during the past three years has received any notice that they are being audited been under administrative, civil or investigated criminal investigation or indictment by any Governmental Entity Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contracts. Each Contract or Government Subcontract, and (B) during the past five (5) years, the Company has not conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Subcontract;
(iv) The Company has not received notice of (A) any outstanding claims against the Company, either by any Governmental Authority or by any prime contractor, subcontractor or vendor, arising under or relating to any Government Contract or Government Subcontract or (B) any material disputes between the Company and any Governmental Authority under the Contract Disputes Act or any other federal statute or regulation or between the Company and any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract;
(v) the Company has no interest in any pending or, to the Knowledge of the Group Companies Sellers, potential claim against any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract, and Section 2.8(e) of the Sellers' Disclosure Letter lists each Government Contract or Government Subcontract which is currently under audit by any Governmental Authority or any other person that is a party to such Government Contract or Government Subcontract;
(vi) the Company has conducted their operations not been debarred or suspended from participation in material compliance the award of contracts with any Governmental Authority (excluding for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements), there exist no facts or circumstances that would warrant suspension or debarment or the finding of non-responsibility or ineligibility on the part of the Company, no payment has been made by the Company or by any Person on behalf of the Company in connection with any Governmental Contract or Governmental Subcontract in violation of any requirements of all applicable Laws Law relating to procurement or in violation of, or requiring disclosure pursuant to, the Foreign Corrupt Practices Act, and regulations pertaining the Company's cost accounting and procurement systems and the associated entries reflected in the Company's financial records with respect to all the Government Contracts and bids for Government Contracts. The Group Companies do not have Subcontracts are in effectcompliance in all material respects with all requirements of any applicable Law;
(vii) neither the Company, nor are they required any of its shareholders, directors, officers or employees, nor, to have in effect, and have never had in effectthe Knowledge of the Sellers, any security clearances of its consultants or agents, has committed (or taken any action to promote or conceal) any violation of the Arms Export Control Act, the International Traffic in Arms Regulations, as amended, the Atomic Energy Act of 1954, as amended, Executive Order 12958 (April 17, 1995), Executive Order 12829 (January 6, 1993), Executive Order 13292 (March 25, 2003), or any directives and policies issued pursuant thereto, including, without limitation, the National Industrial Security Program Operating Manual (NISPOM); and
(viii) all representations, certifications and statements executed, acknowledged or submitted by or on behalf of the Company to any Governmental Authority, prime contractor, subcontractor or vendor in connection with any Government Contract or any Government Subcontract (or any change or modification thereto) at any time, including but not limited to any statements made in connection with the operation Procurement Integrity Law, 41 U.S.C. Section 423, the Lobbying Disclosure Act of 1995, 2 U.S.C. Section 1601-1612, the Xxxx Amendment, 31 U.S.C. Section 1352, and their businessassociated implementing regulations, contract clauses, representations or certifications, are true, complete and correct in all respects, and the Company has complied in all respects with all such representations, certifications and statements.
Appears in 1 contract
Samples: Stock Purchase Agreement (Edo Corp)
Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: ): (i) for the sale of Company services or for the purchase of products or services of at least $500,000 200,000 per year or $1,000,000 500,000 in the aggregate, (ii) that purports to limit, in any material respect, limit either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers business or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification indemnification, warranty, support, maintenance, or service that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed moneyindebtedness, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000100,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 100,000 (other than data assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or the shares or Equity Securities of any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000Person, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries a Subsidiary will have any material outstanding obligation after the date of this Agreement, and (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 250,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or following sixty (B60) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedulesdays prior written notice, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,00010,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000building, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it it, (xiii) all Reinsurance Contracts to which the Insurance Company is a party or under which the Insurance Company is an obligor, beneficiary, or has any rights, including all administrative or servicing agreements or other agreements whereby a Group Company provides services to the Insurance Company for any Reinsurance Contract or reinsures the obligations of the Insurance Company in whole or in part, (xiv) any and all material Contracts for the provision or performance of services relating to the marketing, brokering, solicitation or procurement, servicing, adjusting or administration, underwriting, or pricing of Insurance Contracts or Placed Insurance Contracts, including any confidentiality commitments by the Group Companies in such Contracts, including without limitation all offers, sales, renewals, and cancellations thereof, and Contracts relating to the administration, adjustment, investigation, defense, or payment of any claims under any of Insurance Contracts or Placed Insurance Contracts, in each case, involving either (A) an aggregate consideration in excess of $100,000 or (B) services which if not provided, the Company would not be able to underwrite, adjust or sell Insurance Contracts or Placed Insurance Contracts for a period of forty-eight (48) hours or greater; (xv) all Insurance Carrier Agency Agreements, (xvi) all Contracts between and/or among the Group Companies or (xvii) that are a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) to the Group Companies as a whole (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company and, to the knowledge of the Company, the counterparties thereto are not in material breach of, or default under, any Material Contract.
(c) All Material Contracts are being performed without any party thereto relying on any force majeure provisions to excuse non-performance or performance delays arising out of the COVID-19 pandemic or COVID-19 Measures.
(d) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had or been required to have in effect, any security clearances in connection with the operation of their business.
Appears in 1 contract
Samples: Business Combination Agreement (Omnichannel Acquisition Corp.)
Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per in any fiscal year or $1,000,000 in during the aggregate, fiscal years 2019 through 2021; (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, including as a result of the grant of any exclusive licenses under Company Owned Intellectual Property to any Person; (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, ; (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, ; (v) that evidences indebtedness Indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, Company; (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, obligation; (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement; (ix) any Contract pursuant to which a Group Company receives any Governmental Grant or any access to or use of other funding, facilities, resources or personnel of any Governmental Entity or for which a Governmental Entity is the end customer, (ixx) any Contract that is for the employment or engagement of any directors, employees or independent contractors at gross annual compensation in excess of $500,000 400,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d3.7(a) of the Company Disclosure Schedules, ; (xxi) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, ; (xixii) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, building; (xiixiii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events events, (B) that limits, curtails or restricts the ability of any Group Company to use, develop, distribute, make available or enforce any material Company Owned Intellectual Property in any material respect, or (BC) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license rights, or option to license rights cause an assignment of, to or under (as applicable) any material Company Product or any material Company Owned Intellectual Property, ; (xiiixiv) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), ; (xivxv) any Contract required to be disclosed on Section 3.20 3.21 of the Company Disclosure Schedules, ; (xvi) any Contract with a Top Supplier or Top Customer; and (xvxvii) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and represents a legal, valid and binding obligation of the applicable Group Company, and to the knowledge of the applicable Group Company, the other parties thereto, and are enforceable by the applicable Group Company to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a Proceeding in equity or at law), (ii) the applicable Group Company and, to the knowledge of the Company, the counterparties thereto are not in material breach of, or material default (or would be in material breach, violation or default but for the existence of a cure period) under, any Material Contract, (iii) as of the date hereof, no Group Company has received any written claim or notice of material breach of or material default under any Material Contract, (iv) no event has occurred (or is reasonably likely to occur as a result of the consummation of the Transactions hereunder) which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any Material Contract or any other party thereto (in each case, with or without notice or lapse of time or both) and (v) as of the date hereof, no Group Company has received written notice from any other party to any such Material Contract that such party intends to terminate or not renew any such Contract.
(c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity, including any Contracts pursuant to which a Group Company receives any Governmental Grant or any access to or use of other funding, facilities, resources or personnel of any Governmental Entity or for which a Governmental Entity is the end customer (such Contracts, collectively, “Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all terms and conditions and applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. All representations and certifications executed with respect to any Government Contract were accurate and truthful in all material respects as of their effective date, and the Group Companies have complied with all such representations and certifications in all material respects. All invoices and claims for payment, reimbursement, or adjustment submitted by a Group Company in connection with a Government Contract were current, accurate, and complete in all material respects as of their respective submission dates. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 1 contract
Samples: Business Combination Agreement (Endurance Acquisition Corp.)
Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules Schedule 4.12 sets forth a true and complete list of all of the following Contracts (whether written or oral) to which a Group any Company Entity is a party or by which it or its properties, rights or assets is bound, as of the date hereof: hereof (such Contracts, together with all Contracts concerning the Leased Real Property required to be disclosed in Schedule 4.18(b), and all Contracts falling into the following categories whether or not disclosed on Schedule 4.12, being “Material Contracts”):
(i) Contracts for the sale or purchase of Company services or for the purchase any of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in Company Entity which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person provides for payments by or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group such Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount Entity in excess of $500,000, 250,000 during calendar year 2020 or that are expected to involve more than such amount in calendar year 2021;
(viii) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is Contracts for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants grant to any Person of any most-favored nations, priority, or exclusivity rights or any right of first refusal, right of first negotiationoffer or similar right;
(iii) Contracts for joint ventures, option partnerships or sharing of profits, and Contracts for joint or shared marketing activities or expenses;
(iv) Contracts containing covenants obligating a Company Entity not to purchasecompete or engage in any line of business or with any Person in any geographical area;
(v) Contracts containing covenants obligating a Company Entity not to solicit or hire any Person with respect to employment;
(vi) Contracts relating to the acquisition or disposition by a Company Entity (by merger, purchase of stock or assets or otherwise) of any line of business or a material amount of stock or assets, in each case if entered into in the past three (3) years, or option under which any material Liabilities remain outstanding;
(vii) Contracts evidencing Indebtedness in excess of $250,000 individually or $1,000,000 in aggregate (whether incurred, assumed, guaranteed or secured by any asset), except any such agreement solely between or among Company Entities;
(viii) any Contract under which any Company Entity is required to license rights provide continuing indemnification or a guarantee of obligations of any Person (other than the other Company Entity) or the assumption of any Tax, environmental or other Liability of any Person (except for standard indemnification provisions entered in the ordinary course of business with customers or suppliers);
(ix) any Contract under which any Company Entity has advanced or loaned any amount to any material of its managers, directors or officers in the past three (3) years and such advance or loan remains outstanding;
(x) any Contract between any Company Product Entity, on the one hand, and any of their respective directors or officers, on the other hand;
(xi) Contracts with independent contractors or consultants that require annual cash payments in excess of $150,000 to which a Company Entity is a party and which are not cancellable without penalty (including any material Company Owned Intellectual Property, termination payment) or without more than thirty (30) days’ notice;
(xii) collective bargaining or similar labor agreements;
(xiii) that establish a joint venture, partnership or limited liability company any Contract with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), Governmental Authority;
(xiv) any Contract required under which any Company Entity is obligated to be disclosed make any capital commitment or expenditure in excess of $200,000 individually or $500,000 in the aggregate, during any twelve (12)-month period;
(xv) any Contract that provides for any payments, rights or obligations that are conditioned, in whole or in part, on Section 3.20 a change of control with respect to any Company Entity, other than as provided in the Company Entities’ Organizational Documents;
(xvi) any Contract that limits or purports to limit the payment of dividends or distributions in respect of the capital stock of any Company Entity, the pledging of the capital stock of any Company Entity or the incurrence of indebtedness for borrowed money or guarantees by any Company Entity or the ability of any Company Entity in any material respect to pledge, sell, transfer or otherwise dispose of any material amount of assets or business;
(xvii) any Company Affiliate Agreement;
(xviii) Contracts with the top five brand partners of the Company Disclosure SchedulesEntities measured by revenue or value of goods or services received during the twelve-month period ended December 31, 2019 and the nine-month period ended September 30, 2020;
(xix) Contracts involving the Foundation for which a Company Entity could have material Liability; and
(xx) any other Contract that is material to the Company Entities, taken as a whole, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required provides for consideration to be set forth on paid by a Company in excess of $250,000 annually or $500,000 in the aggregate and, in either case, is not previously disclosed pursuant to this Section 3.7(a) of the Company Disclosure Schedules4.12, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) 4.18 or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”4.12(b). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid valid, binding and binding enforceable on the applicable Group Company Entity and, to the knowledge Knowledge of the Company, each other party thereto in accordance with its terms except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium, fraudulent conveyance or other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or in equity). None of the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company andEntities or, to the knowledge Knowledge of the Company, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged in writing to be in material breach of or default under), or has provided or received any written notice of any intention to terminate, any Material Contract.
. Complete and correct copies of each Material Contract (cincluding all modifications, amendments and supplements thereto) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, made available to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessAcquiror.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per in any fiscal year or $1,000,000 in during the aggregate, fiscal years 2019 through 2021; (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, including as a result of the grant of any exclusive licenses under Company Owned Intellectual Property to any Person; (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, ; (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, ; (v) that evidences indebtedness Indebtedness for borrowed money, whether incurred, TABLE OF CONTENTS assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, Company; (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, obligation; (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement; (ix) any Contract pursuant to which a Group Company receives any Governmental Grant or any access to or use of other funding, facilities, resources or personnel of any Governmental Entity or for which a Governmental Entity is the end customer, (ixx) any Contract that is for the employment or engagement of any directors, employees or independent contractors at gross annual compensation in excess of $500,000 400,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d3.7(a) of the Company Disclosure Schedules, ; (xxi) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, ; (xixii) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, building; (xiixiii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events events, (B) that limits, curtails or restricts the ability of any Group Company to use, develop, distribute, make available or enforce any material Company Owned Intellectual Property in any material respect, or (BC) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license rights, or option to license rights cause an assignment of, to or under (as applicable) any material Company Product or any material Company Owned Intellectual Property, ; (xiiixiv) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), ; (xivxv) any Contract required to be disclosed on Section 3.20 3.21 of the Company Disclosure Schedules, ; (xvi) any Contract with a Top Supplier or Top Customer; and (xvxvii) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and represents a legal, valid and binding obligation of the applicable Group Company, and to the knowledge of the applicable Group Company, the other parties thereto, and are enforceable by the applicable Group Company to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a Proceeding in equity or at law), (ii) the applicable Group Company and, to the knowledge of the Company, the counterparties thereto are not in material breach of, or material default (or would be in material breach, violation or default but for the existence of a cure period) under, any Material Contract., (iii) as of the date hereof, no Group Company has received any written claim or notice of material breach of or material default under any Material Contract, (iv) no event has occurred (or is reasonably likely to occur as a result of the consummation of the Transactions hereunder) which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any Material Contract or any other party thereto (in each case, with or without notice or lapse of time or both) and (v) as of the date hereof, no Group Company has received written notice from any other party to any such Material Contract that such party intends to terminate or not renew any such Contract. TABLE OF CONTENTS
(c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity, including any Contracts pursuant to which a Group Company receives any Governmental Grant or any access to or use of other funding, facilities, resources or personnel of any Governmental Entity or for which a Governmental Entity is the end customer (such Contracts, collectively, “Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all terms and conditions and applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. All representations and certifications executed with respect to any Government Contract were accurate and truthful in all material respects as of their effective date, and the Group Companies have complied with all such representations and certifications in all material respects. All invoices and claims for payment, reimbursement, or adjustment submitted by a Group Company in connection with a Government Contract were current, accurate, and complete in all material respects as of their respective submission dates. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(a) i. The Company has delivered or made available to Parent true and complete copies of the Company Disclosure Schedules sets forth a list of all following Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (ivdefined below) under which a Group any Acquired Company has permitted any material asset rights, under which any Acquired Company has or is reasonably likely to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteedany obligation or liability, or secured by which any asset Acquired Company or any of a Group Company having the assets owned by it is or is reasonably likely to become bound:
(1) each Contract involving performance of services or delivery of goods or materials by one or more Acquired Companies of an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 or its foreign currency equivalent annually;
(other than assets acquired and sales 2) each Contract involving expenditures or receipts of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), one or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation more Acquired Companies in excess of $500,000 or its foreign currency equivalent annually;
(3) each collective bargaining agreement and other than Contract to or with any labor union or other employee representative of a group of employees;
(A4) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any each employment and consulting Contract with any Person employee of any Acquired Company;
(A5) pursuant each joint venture, partnership and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(6) each Contract containing covenants that materially restrict the business activity of any Acquired Company or any affiliate of any Acquired Company or limit the freedom of any Acquired Company or any affiliate of an Acquired Company to which engage in any Group Company may be required line of business or to pay milestones, royalties or other contingent payments compete with any Person;
(7) each Contract relating to the borrowing of money in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or its foreign currency equivalent;
(B) under 8) each real property lease to which any Group Acquired Company grants is subject;
(9) all Contracts described in (i) through (viii) are collectively referred to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for as the sharing of profits and joint research or development Contracts ("Material Contracts".
ii. Except as set forth in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure SchedulesSchedule, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and (ii) is valid and enforceable in accordance with its terms. Except as set forth in the applicable Group Company andDisclosure Schedule, each Acquired Company is, to the knowledge Knowledge of the Company, the counterparties thereto are not in compliance in all material breach of, or default under, any respects with all applicable terms and requirements of each Material Contract.
(c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(aSchedule 4.16(a) of the Company Disclosure Schedules sets forth a true, complete and accurate list of all of the following Contracts (whether written or oral) to which a Group the Company is a party or by which it or its properties, rights or assets is bound, as of the date hereof: hereof (the “Material Contracts”):
(i) Contracts for the sale or purchase of Company services or for the purchase any of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in Company which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person provide for payments by or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group the Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000100,000 during calendar year 2020, calendar year 2021 or that are expected to involve more than such amount in calendar year 2022;
(viii) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is Contracts for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants grant to any Person of any most-favored nations, priority, or exclusivity rights or any right of first refusal, right of first negotiationoffer or similar right;
(iii) Contracts for joint ventures, option partnerships or sharing of profits, and Contracts for joint or shared marketing activities or expenses;
(iv) Contracts containing covenants obligating the Company not to purchasecompete or engage in any line of business or with any Person in any geographical area;
(v) Contracts containing covenants obligating the Company not to solicit or hire any Person with respect to employment;
(vi) Contracts relating to the acquisition or disposition by the Company (by merger, purchase of stock or assets or otherwise) of any line of business or a material amount of stock or assets, in each case if entered into in the past three (3) years, or option under which any Liabilities remain outstanding;
(vii) Contracts evidencing Indebtedness (whether incurred, assumed, guaranteed or secured by any asset);
(viii) Contracts under which the Company is required to license rights provide continuing indemnification or a guarantee of obligations of any Person or the assumption of any environmental or other Liability of any Person;
(ix) Contracts under which the Company has advanced or loaned any amount to any material of its managers, directors or officers in the past three (3) years and such advance or loan remains outstanding;
(x) Contracts between the Company, on the one hand, and any of its directors or officers, on the other hand;
(xi) Contracts with independent contractors or consultants that require annual cash payments in excess of $100,000 to which the Company Product is a party and which are not cancellable without penalty (including any termination payment) or any material Company Owned Intellectual Property, without more than thirty (30) days’ notice;
(xii) collective bargaining or similar labor agreements;
(xiii) that establish a joint venture, partnership or limited liability company Contracts with a third partyGovernmental Authority;
(xiv) Contracts under which the Company is obligated to make any capital commitment or expenditure in excess of $50,000 individually or $100,000 in the aggregate, including during any twelve (12)-month period;
(xv) Contracts that provide for the sharing any payments, rights or obligations that are conditioned, in whole or in part, on a change of profits and joint research or development Contracts (in each case, other than control with respect to wholly owned Subsidiaries the Company;
(xvi) Contracts that limit or purport to limit the payment of dividends or distributions in respect of the capital stock of the Company), (xiv) any Contract required to be disclosed on Section 3.20 the pledging of the capital stock of the Company Disclosure Schedules, or (xv) agreement under which it is lessor the incurrence of indebtedness for borrowed money or permits any third party to hold guarantees by the Company or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) the ability of the Company Disclosure Schedulesin any material respect to pledge, together sell, transfer or otherwise dispose of any material amount of assets or business;
(xvii) any Company Affiliate Agreement;
(xviii) Contracts with the IP Contracts required all athletes, brand ambassadors, influencers and celebrities that require annual cash payments in excess of $20,000 to be set forth on Section 3.13(c) of which the Company Disclosure Schedules is a party; and
(xix) any other Contract that is material to the Company and each of the Contracts entered into after the date of is not previously disclosed pursuant to this Agreement that would be required to be set forth on Section 3.7(a4.16(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.4.22
(b) (i) Each Material Contract is valid valid, binding and binding enforceable on the applicable Group Company and, and to the knowledge Knowledge of the Company, each other party thereto in accordance with its terms except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or in equity). Neither the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company andnor, to the knowledge Knowledge of the Company, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any written notice of any intention to terminate, any Material Contract.
. Complete and correct copies of each Material Contract (cincluding all modifications, amendments and supplements thereto) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, made available to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessAcquiror.
Appears in 1 contract
