Material Contracts; No Defaults. (a) Section 3.18 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 Schedule is in full force and effect 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 of the Company, 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 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 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. (e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current or completed Material Contract with any Person and no such Person has made written demand for such renegotiation.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Trans World Entertainment Corp)
Material Contracts; No Defaults. (a) Section 3.18 3.7(a) of the Company Disclosure Schedule Schedules sets forth:
forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) each Contract currently 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 effect the aggregate, (ii) that involves performance purports to limit, in any material respect, either the type of services bybusiness 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 delivery 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 goods 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 materials tosecured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the Company for 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 amount or aggregate value in excess of $15,000;
500,000 (ii) other than assets acquired and sales of material, supply and inventory, in each Contract currently in effect that was not entered into case, in the Ordinary Course ordinary course of Business and 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 involves expenditures is a settlement, conciliation or receipts of 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 $15,000;
500,000 other than (iiiA) 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 Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with any other Person;
(viithe Transactions as disclosed in Section 5.17(d) 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 pricingDisclosure Schedules, 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 agreement under which it is lessee of attorney that is currently effective and outstanding;
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) each Contract currently in effect entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to be responsible for consequential damages;
(xii) each Contract for capital expenditures use or occupy any land or building that require the Group Companies to make annual payments in excess of $10,000;
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 written warrantycase, guaranty, and or other similar undertaking than with respect to contractual performance extended by wholly owned Subsidiaries of the Company other than in the Ordinary Course of Business; and
Company), (xiv) each amendment, supplement, and modification (whether oral or written) in respect of any Contract required to be disclosed on Section 3.20 of the foregoing. 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 listed required to be set forth on Schedule 3.18 are referred to in Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement as 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) 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.
(ci) Each Material Contract identified or required is valid and binding on the applicable Group Company and, to be identified in Section 3.18(a) the knowledge of the Company Disclosure Schedule Company, the counterparty thereto, and 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 Company has or had any rights is, and at all times since January 1, 2013, has been, counterparties thereto are not 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 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 material breach of, or default under, any Material Contract.
(ec) There are 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 renegotiations ofsuspension or debarment actions have been commenced or, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current knowledge of the Company, threatened against any of the Group Companies or completed Material Contract 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 Person Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and no such Person has made written demand regulations pertaining to all Government Contracts and bids for such renegotiationGovernment 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 3.18 Part 3.17(a) of the Company Disclosure Schedule sets forth:lists and the Company has made available to Purchaser (subject, in the case of clause (xiii) below, to receipt of approval by the Antitrust Authorities) true, correct and complete copies of, each Contract (excluding any Real Property Leases) in effect as of the date of this Agreement to which any of the Acquired Companies is a party (including any amendment or supplement to any of the foregoing):
(i) each Contract currently in effect that involves performance of services by, or delivery of goods or materials to, with any Related Party (other than the Company for an amount or value in excess of $15,000Benefit Plans and Employment Contracts);
(ii) each Contract currently in effect that was not entered into in the Ordinary Course with sources of Business and that involves expenditures or receipts patient referrals to any of the Company in excess of $15,000Acquired Companies (other than any acute dialysis Contracts, Contracts with Persons to whom no consideration is paid (including affiliation and transfer agreements) and any payor Contracts);
(iii) each Contract currently in effect affecting evidencing or governing Indebtedness material to the ownership ofAcquired Companies taken as a whole (excluding, leasing offor the avoidance of doubt, title toContracts evidencing Liabilities with respect to deposits and accounts, use oftrade payables, letters of credit 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 yearcapital leases);
(iv) each Contract currently in effect relating to evidencing restrictions on 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 ability of 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 Acquired Company or any Affiliate of its Subsidiaries or, after giving effect to the Company Contemplated Transactions, Purchaser or limit the freedom of the Company or any Affiliate of the Company its Subsidiaries, to engage in any line of business or to compete with any PersonPerson in any geographic area (other than the Benefit Plans or Employment Contracts);
(v) evidencing the employment of, or the performance of services by, any employee or consultant that provides for annual consideration in excess of $250,000, or pursuant to which any of the Acquired Companies is or may become obligated to make any severance, termination, change of control or similar payment to any current or former employee or director in excess of $250,000 (collectively, the “Employment Contracts”);
(vi) evidencing partnerships or joint ventures in which any Acquired Company has any ownership interest;
(vii) relating to the acquisition or disposition of any capital stock, business or product line of any other Person (other than any Acquired Company) entered into at any time during the last three (3) years for aggregate consideration under such Contract in excess of $1,000,000 or pursuant to which any Acquired Company has continuing obligations with respect to indemnification or purchase price;
(viii) each Contract currently other than with respect to Benefit Plans, (A) obligating any Acquired Company to issue, sell, register, repurchase or redeem any Shares or any other ownership interest in effect that provides any customer of Company Acquired Company, (B) with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered respect to the voting of any Shares or any other customer(sownership interest in any Acquired Company, (C) providing any Person with any preemptive right with respect to any Shares or any other ownership interest in any Acquired Company, or (D) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any Shares or other ownership interest in such Acquired Company, including contracts containing “most favored nation” provisions;
(ix) each Contract currently in effect providing for payments to or by which any Person based on sales, purchases, or profits, other than direct payments for goodsGovernmental Body is a party;
(x) relating to the purchase of materials, equipment or supplies pursuant to which the performance remaining thereunder (A) involves the payment of cash or other consideration by the Acquired Companies in excess of $500,000 per annum or (B) involves any minimum purchasing requirements or volume commitments on the part of any Acquired Company in excess of $500,000 per annum, and, in the case of (A) and (B), such Contract is not cancelable, without material penalty, by any Acquired Company on 90 days’ or less notice, in each power of attorney that is currently effective and outstandingcase;
(xi) each Contract currently in effect entered into other than in the Ordinary Course of Business that contains constituting a medical director agreement, management services agreement or provides for an express undertaking by the Company to be responsible for consequential damagesacute services agreement;
(xii) each Contract except for capital expenditures the Employment Contracts and Benefit Plans or as entered into in the ordinary course of business, the performance remaining thereunder involves the receipt of cash or other consideration in an amount or having a value in excess of $10,000500,000 per annum in the aggregate;
(xiii) each written warranty, guaranty, and evidencing the settlement of any Legal Proceeding to which any Acquired Company was a party for an amount in excess of $50,000 or other similar undertaking with respect to contractual performance extended which any Acquired Company has continuing obligations;
(xiv) relating to any Company Payment Program;
(xv) relating to any Proprietary Rights owned or used by any Acquired Company that are material to the Company other than in the Ordinary Course of BusinessBusiness (excluding commercially available off-the-shelf software);
(xvi) evidencing Contingent Payment Contracts; and
(xivxvii) each amendment, supplement, and modification (whether oral or written) in respect of constituting any other Contract that is material to the Company Business. Each of the foregoing. The Contracts listed on Schedule 3.18 are referred to in this Agreement as foregoing is a “Material ContractsContract.”.
(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 and each Personal Property Lease, in each case, with respect to be identified in Section 3.18(a) of the Company Disclosure Schedule is in full force and effect andapplicable Acquired Company, is a valid and enforceable in accordance with its terms.
(d) The Company isbinding obligation of each such Acquired Company, 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 of the Company, the other parties thereto and each is in full force and effect, and is enforceable in accordance with its terms, except that enforcement thereof may be limited by (x) bankruptcy, insolvency or similar laws affecting the enforcement of creditor’s rights in effect from time to time, and (y) general principles of equity.
(c) Except as set forth in Part 3.17(c) of the Company Disclosure Schedule, (i) the terms of each Material Contract are in compliance with applicable Legal Requirements in all material respects; (ii) none of the Acquired Companies has violated or breached, or committed any default under, any Material Contract; (iii) to the Knowledge of the Company, no other Person that has violated or had breached, or committed any obligation or liability under default under, any Material Contract under which the 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 and (iv) there does not exist any event, occurrence or circumstance exists that condition, including the consummation of the Contemplated Transactions, which (with or without notice or lapse of time) may contravene, conflict with, or result in both) would constitute a violation or breach ofdefault thereunder by any of the Acquired Companies or, or give to the Company or other Person Knowledge of the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modifyCompany, any other party to such Material Contract; and , except where the Company has not given, failure to so comply 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.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current or completed Material Contract with any Person and no such Person has made written demand for such renegotiationviolations, breaches or defaults that would not, individually or in the aggregate, have or be reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Davita Inc)
Material Contracts; No Defaults. (a) Section 3.18 i. The Company has delivered or made available to Parent true and complete copies of the following Contracts (as defined below) under which any Acquired Company Disclosure Schedule sets forthhas any rights, under which any Acquired Company has or is reasonably likely to become subject to any obligation or liability, or by which any Acquired Company or any of the assets owned by it is or is reasonably likely to become bound:
(i1) each Contract currently in effect that involves involving performance of services by, or delivery of goods or materials to, the Company for by one or more Acquired Companies of an amount or value in excess of $15,000500,000 or its foreign currency equivalent annually;
(ii2) each Contract currently in effect that was not entered into in the Ordinary Course of Business and that involves involving expenditures or receipts of the Company one or more Acquired Companies in excess of $15,000500,000 or its foreign currency equivalent annually;
(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;
(v3) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi4) each employment and consulting Contract with any employee of any Acquired Company;
(5) each joint venture, partnership, partnership and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the any Acquired Company with any other Person;
(vii6) each Contract currently in effect containing covenants that in any way purport to materially restrict the business activity of the any Acquired Company or any Affiliate affiliate of the any Acquired Company or limit the freedom of the any Acquired Company or any Affiliate affiliate of the an Acquired Company to engage in any line of business or to compete with any Person;
(viii7) 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 relating to the other customer(s) borrowing 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 money in excess of $10,000500,000 or its foreign currency equivalent;
(xiii) 8) each written warranty, guaranty, and or other similar undertaking with respect real property lease to contractual performance extended by the which any Acquired Company other than in the Ordinary Course of Business; andis subject;
(xiv9) each amendment, supplement, and modification all Contracts described in (whether oral or writteni) in respect of any of the foregoing. The Contracts listed on Schedule 3.18 through (viii) are collectively referred to in this Agreement as “the "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 ii. Except as set forth 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 Schedule Schedule, each Material Contract is in full force and effect and, and is valid and enforceable in accordance with its terms.
(d) The . Except as set forth in the Company Disclosure Schedule, each Acquired Company is, and at all times since January 1, 2013, has beento the Knowledge of the Company, in full compliance in all material respects 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 of the Company, 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 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 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.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current or completed Material Contract with any Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.18 Schedule 3.16(a) contains a list, and except as noted in Schedule 3.16(a), Seller has made available to Purchaser true and complete copies, of the following Contracts to which the Company Disclosure Schedule sets forth:or its Subsidiary is a party or by which it is bound (each a “Material Contract” and, collectively, the “Material Contracts”):
(i) each Contract currently in effect that involves performance providing for the sale of products or services by, or delivery of goods or materials to, by the Company for an amount or value in excess its Subsidiary involving receipts exceeding $250,000 annually or $1,000,000 over the remaining term of $15,000such Contract;
(ii) each Contract currently in effect that was not entered into in providing for the Ordinary Course purchase of Business and that involves expenditures products or receipts of services by the Company in excess or its Subsidiary involving payments exceeding $250,000 annually or $1,000,000 over the remaining term of $15,000such Contract;
(iii) each lease, rental or occupancy agreement, installment and conditional sale agreement, and other Contract currently in effect affecting the Company’s or its Subsidiary’s ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or tangible personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate property, involving annual payments in excess of less than $10,000 and with terms of less than one year)100,000;
(iv) each Contract currently in effect relating involving Intellectual Property listed on or required to the license, sublicense, use, disclosure and development and covenants not-to-xxx with respect to Intellectual Propertybe listed on Schedule 3.21(c)(i) or (iii);
(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 profitsprofits (excluding revenue sharing Contracts with publishers), losses, costs, or liabilities of the Business by the Company or its Subsidiary with any other Person, or relating to the ownership of a partnership, membership or other equity interest in any Entity;
(vi) each Contract that limits in any material respect the freedom of the Company or its Subsidiary to compete with any Person, or to sell, supply or distribute products or services any Person;
(vii) each written Contract currently in effect containing covenants that in any way purport to restrict the business activity (A) which has continuing material obligations of the Company or its Subsidiary thereunder with any Affiliate current or former employee (excluding standard form employment Contracts with current or former employees of the Company’s Subsidiary) or (B) which has continuing material payment obligations 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 its Subsidiary thereunder with any Personcurrent or former independent contractor for personal services (other than bloggers or other content writers);
(viii) each collective bargaining agreement or other Contract currently in effect that provides to which the Company or its Subsidiary is a party with any customer of Company with pricinglabor union, discounts works council 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” provisionsemployee representative body;
(ix) each Contract currently that contains outstanding earn-out, deferred or contingent purchase price or similar contingent payment obligations on the part of the Company or its Subsidiary in effect providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goodsexcess of $250,000;
(x) each power Contract that provides for the acquisition of attorney that is currently effective and outstandingany business, business unit or product line or the capital stock of any other Person for consideration in excess of $1,000,000, which was consummated within three (3) years prior to the date of this Agreement;
(xi) each Contract currently in effect entered into other than in the Ordinary Course that relates to Debt of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damagesor its Subsidiary in excess of $250,000;
(xii) each Contract for capital expenditures under which (A) any Person (other than the Company or its Subsidiary) has directly or indirectly guaranteed any material liabilities or obligations of the Company or its Subsidiary, or (B) the Company or its Subsidiary has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than the Company or its Subsidiary), including in excess of $10,000each case any “take-or-pay” or keepwell agreement;
(xiii) each written warrantyContract that is between the Company or its Subsidiary, guarantyon the one hand, and or other similar undertaking with respect to contractual performance extended by Seller, any Affiliate of Seller (excluding the Company and its Subsidiary) or any current or former director, officer or employee of Seller, on the other than in the Ordinary Course of Business; andhand;
(xiv) each Contract with a Governmental Body;
(xv) each Contract that involves any resolution or settlement of any actual or threatened material Proceeding since July 1, 2008;
(xvi) each Contract which provides for future aggregate payments to or by the Company or its Subsidiary in excess of $250,000 annually or in excess of $1,000,000 over the remaining term of such Contract; and
(xvii) each material amendment, supplement, and modification (whether oral or written) in respect of of, and each commitment or agreement to enter into, any of the foregoing. The Contracts listed on Schedule 3.18 are referred to in this Agreement as “Material Contracts”.
(b) No Affiliate of Except as set forth in Schedule 3.16(b), (i) neither the Company and no Related Person of any officer or director of the Company has any rightsCompany, obligations or liability under any Contract that relates its Subsidiary nor, to the business ofKnowledge of Seller, any other party to such Material Contract, is in material default or material breach of or has failed to perform any material obligation under a Material Contract, and, to the Knowledge of the assets owned Seller, there does not exist any event, condition or used by, the Companyomission that would constitute such a material breach or material default (whether by lapse of time or notice or both); 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 (Aii) 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 each Material Contract identified or required to be identified in Section 3.18(a) of the Company Disclosure Schedule is in full force and effect effect, and is a legal, valid and binding obligation of the Company or its Subsidiary, as applicable, and, is valid and enforceable to the Knowledge of Seller, each counterparty thereto, in accordance with its terms.
, except as such enforceability may be limited by (dA) The Company islaws of general application relating to bankruptcy or insolvency, or moratorium or other similar laws affecting or relating to creditors’ rights generally, and at all times since January 1(B) rules of law governing specific performance, 2013injunctive relief and other equitable remedies, has been, in full compliance with all applicable terms and requirements regardless 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 of the Company, 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 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 whether asserted in a violation Proceeding in equity 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 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 Contractlaw.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current or completed Material Contract with any Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Scripps Networks Interactive, Inc.)
Material Contracts; No Defaults. (a) Section 3.18 3.7(a) of the Company Disclosure Schedule Schedules sets forth:
forth a list of all Contracts (whether written or oral): (i) each Contract currently for the sale of Company services or for the purchase of products or services of at least $200,000 per year or $500,000 in effect the aggregate, (ii) that involves performance purports to limit either the type of services bybusiness in which a Group Company may engage, the geographic area in which they may engage in business or the ability to sell or purchase from any Person, (iii) containing any indemnification, warranty, support, maintenance, or delivery service that represents a material obligation of goods 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, whether incurred, assumed, guaranteed, or materials tosecured by any asset of a Group Company having an outstanding principal amount in excess of $100,000, (vi) involving the Company for acquisition or disposition, directly or indirectly, by merger or otherwise, of assets with an amount or aggregate value in excess of $15,000;
100,000 (ii) each Contract currently in effect that was not entered into other than data assets acquired in the Ordinary Course ordinary course of Business and business), or the shares or Equity Securities of any other Person, (vii) any CBA; (viii) any Contract that involves expenditures is a settlement, conciliation or receipts of similar agreement with any Governmental Entity or pursuant to which the Company or 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 $15,000;
250,000 other than Contracts that can be terminated by the Company without cost or penalty following sixty (iii60) each Contract currently in effect affecting days 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 ownership ofaggregate annual rental payments do not exceed $10,000, leasing of(xi) agreement pursuant to which the Company is granted a lease in, title to, use ofa sublease in, or the right to use or occupy any leasehold land or building, (xii) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by 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 interest inagreements 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, any real (xiv) any and all material Contracts for the provision or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments performance of less than $10,000 and with terms of less than one year);
(iv) each Contract currently in effect services relating to the licensemarketing, sublicensebrokering, usesolicitation or procurement, disclosure and development and covenants not-to-xxx with respect to Intellectual Property;
(v) each collective bargaining agreement and other Contract to servicing, adjusting or with administration, underwriting, or pricing of Insurance Contracts or Placed Insurance Contracts, including any labor union or other employee representative of a group of employees;
(vi) each joint ventureconfidentiality commitments by the Group Companies in such Contracts, partnershipincluding without limitation all offers, sales, renewals, and other Contract (however named) involving a sharing of profitscancellations thereof, lossesand Contracts relating to the administration, costsadjustment, investigation, defense, or liabilities by the Company with payment of any other Person;
claims under any of Insurance Contracts or Placed Insurance Contracts, in each case, involving either (viiA) 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 aggregate consideration in excess of $10,000;
100,000 or (xiiiB) each written warrantyservices which if not provided, guarantythe Company would not be able to underwrite, and adjust or other similar undertaking with respect to contractual performance extended 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 Company other than in SEC) to the Ordinary Course of Business; and
Group Companies as a whole (xiveach Contract required to be set forth on Section 3.7(a) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. The Company Disclosure Schedules, together with the IP Contracts listed required to be set forth on Schedule 3.18 are referred to in Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement as 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”).
(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 is valid and binding on the applicable Group Company and, to be identified in Section 3.18(a) the knowledge of the Company Disclosure Schedule Company, the counterparty thereto, and is in full force and effect and 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 Company has or had any rights is, and at all times since January 1, 2013, has been, counterparties thereto are not 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 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 material breach of, or default under, any Material Contract.
(ec) There 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 renegotiations ofsuspension or debarment actions have been commenced or, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current knowledge of the Company, threatened against any of the Group Companies or completed Material Contract 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 Person Government Contracts. Each of the Group Companies has conducted their operations in compliance with the requirements of all applicable Laws and no such Person has made written demand regulations pertaining to all Government Contracts and bids for such renegotiationGovernment 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 3.18 3.7(a) of the Company Disclosure Schedule Schedules sets forth:
forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) each Contract currently for the sale of Company services or for the purchase of products or services of at least $500,000 in effect that involves performance of services by, or delivery of goods or materials to, any fiscal year during the Company for an amount or value in excess of $15,000;
fiscal years 2019 through 2021; (ii) each Contract currently that purports to limit, in effect that was not entered into any material respect, either the type of business or product line in which a Group Company may engage, the Ordinary Course of Business and that involves expenditures geographic area in which they may engage in business, the ability to solicit customers or receipts 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 in excess of $15,000;
Owned Intellectual Property to any Person; (iii) each Contract currently in effect affecting the ownership of, leasing of, title to, use of, or containing any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having indemnification that represents 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 material obligation 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 Group Company other than in the Ordinary Course ordinary course of Businessbusiness; and
(xiviv) each amendmentunder 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, supplementwhether incurred, and modification assumed, guaranteed, or secured by any asset of a Group Company; (whether oral vi) involving the acquisition or written) in respect disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) (other than assets acquired and sales of material, supply and inventory, in each case, in the foregoing. The Contracts listed on Schedule 3.18 are referred ordinary course of business) pursuant to in this Agreement as “Material Contracts”.
which a Group Company has material ongoing obligations (b) No Affiliate of the Company and no Related Person of other than confidentiality obligations), or any officer or director of the Contract pursuant to which a Group Company has any rightsongoing obligations with respect to an “earn-out”, obligations contingent purchase price or liability under other contingent or deferred payment obligation; (vii) any CBA; (viii) 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 that is a settlement, conciliation or continue similar agreement with any conduct, activity, or practice relating to the Business, Governmental Entity or (B) assign 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 Person funding, facilities, resources or personnel of any rights to Governmental Entity or for which a Governmental Entity is the end customer, (x) any inventionContract that is for the employment or engagement of any directors, improvement, employees or discovery.
independent contractors at gross annual compensation in excess of $400,000 other than (cA) Each Material Contract identified Contracts that can be terminated by the Company without cost or required to be identified penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 3.18(a3.7(a) of the Company Disclosure Schedule Schedules; (xi) agreement under which it is lessee of or holds or operates any personal property owned by any other party; (xii) 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; (xiii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or 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 (C) 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 cause an assignment of, to or under (as applicable) any material Company Product or any material Company Owned Intellectual Property; (xiv) 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); (xv) any Contract required to be disclosed on Section 3.21 of the Company Disclosure Schedules; (xvi) any Contract with a Top Supplier or Top Customer; and (xvii) 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.
(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 andand represents a legal, is 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 its their terms.
(d) The Company is, and at subject in 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; respects to the Knowledge 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, each 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 Person that has events, would reasonably be expected to result in a material breach of or had any obligation or liability a material default under any Material Contract under which the Company has or had any rights isother party thereto (in each case, 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 timetime or both) may contraveneand (v) as of the date hereof, 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 no Group Company has received written notice from any other party to any such Material Contract that such party intends to terminate or not given, or received, at renew 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 such Contract.
(ec) There 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 no renegotiations ofbeing 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, attempts to renegotiateand the Group Companies have complied with all such representations and certifications in all material respects. All invoices and claims for payment, reimbursement, or outstanding rights 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 renegotiate have in effect, and have never had in effect, any material amounts paid or payable by or to security clearances in connection with the Company under current or completed Material Contract with any Person and no such Person has made written demand for such renegotiationoperation of their business.
Appears in 1 contract
Samples: Business Combination Agreement (Endurance Acquisition Corp.)
Material Contracts; No Defaults. (a) Section 3.18 Schedule 4.12 sets forth a true and complete list of all of the following Contracts to which any Company Disclosure Entity is a party or by which it or its properties, rights or assets is bound, as of the date hereof (such Contracts, together with all Contracts concerning the Leased Real Property required to be disclosed in Schedule sets forth:4.18(b), and all Contracts falling into the following categories whether or not disclosed on Schedule 4.12, being “Material Contracts”):
(i) each Contract currently in effect that involves performance Contracts for the sale or purchase of any of products or services by, of any Company Entity which provides for payments by or delivery of goods or materials to, the to such Company for an amount or value Entity in excess of $15,000250,000 during calendar year 2020 or that are expected to involve more than such amount in calendar year 2021;
(ii) each Contract currently in effect that was not entered into in Contracts for the Ordinary Course grant to any Person of Business and that involves expenditures any most-favored nations, priority, or receipts exclusivity rights or any right of the Company in excess first refusal, right of $15,000first offer or similar right;
(iii) each Contract currently in effect affecting the ownership ofContracts for joint ventures, leasing ofpartnerships or sharing of profits, title to, use of, and Contracts for joint or any leasehold shared marketing activities 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)expenses;
(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 Contracts containing covenants that in any way purport obligating a Company Entity not to restrict the business activity of the Company compete 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 PersonPerson 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 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) each any Contract currently in effect that provides under which any customer Company Entity is required to provide continuing indemnification or a guarantee of Company with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to obligations of any Person (other than the other customer(sCompany Entity) or the assumption of any Tax, environmental or other Liability of any Person (except for standard indemnification provisions entered in the Company, including contracts containing “most favored nation” provisionsordinary course of business with customers or suppliers);
(ix) each any Contract currently under which any Company Entity has advanced or loaned any amount to any of its managers, directors or officers in effect providing for payments to the past three (3) years and such advance or by any Person based on sales, purchases, or profits, other than direct payments for goodsloan remains outstanding;
(x) each power any Contract between any Company Entity, on the one hand, and any of attorney that is currently effective and outstandingtheir respective directors or officers, on the other hand;
(xi) each Contract currently Contracts with independent contractors or consultants that require annual cash payments in effect entered into other excess of $150,000 to which a Company Entity is a party and which are not cancellable without penalty (including any termination payment) or without more than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damagesthirty (30) days’ notice;
(xii) each Contract for capital expenditures in excess of $10,000collective bargaining or similar labor agreements;
(xiii) each written warrantyany Contract with a Governmental Authority;
(xiv) any Contract under which any Company Entity is obligated to make any capital commitment or expenditure in excess of $200,000 individually or $500,000 in the aggregate, guarantyduring any twelve (12)-month period;
(xv) any Contract that provides for any payments, and rights or other similar undertaking obligations that are conditioned, in whole or in part, on a change of control with respect to contractual performance extended by any Company Entity, other than as provided in the Company other than Entities’ Organizational Documents;
(xvi) any Contract that limits or purports to limit the payment of dividends or distributions in respect of the Ordinary Course capital stock of Businessany 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 Entities 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
(xivxx) each amendmentany other Contract that is material to the Company Entities, supplementtaken as a whole, and modification (whether oral or written) which provides for consideration to be paid by a Company in respect excess of any of $250,000 annually or $500,000 in the foregoing. The Contracts listed on Schedule 3.18 are referred aggregate and, in either case, is not previously disclosed pursuant to in this Agreement as “Material Contracts”Section 4.12, Section 4.18 or Section 4.12(b).
(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 is valid, binding and enforceable on the applicable Company Disclosure Schedule is in full force and effect Entity 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 of the Company, each other Person that has party thereto in accordance with its terms except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium, fraudulent conveyance or had any obligation other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or liability under any Material Contract under which in equity). None of the Company has Entities or, to the Knowledge of the Company, any other party thereto is in material breach of or had any rights is, and at all times since January 1, 2013, has been, default under (or is alleged in full compliance with all applicable terms and requirements writing to be in material breach of such Contract; no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict withdefault under), or result in a violation has provided or breach of, or give the Company or other Person the right received any written notice of any intention 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; . Complete and the Company has not 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.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current or completed correct copies of each Material Contract with any Person (including all modifications, amendments and no such Person has supplements thereto) have been made written demand for such renegotiationavailable to Acquiror.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.18 3.7(a) of the Company Disclosure Schedule Schedules sets forth:
forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) each Contract currently for the sale of Company services or for the purchase of products or services of at least $500,000 in effect that involves performance of services by, or delivery of goods or materials to, any fiscal year during the Company for an amount or value in excess of $15,000;
fiscal years 2019 through 2021; (ii) each Contract currently that purports to limit, in effect that was not entered into any material respect, either the type of business or product line in which a Group Company may engage, the Ordinary Course of Business and that involves expenditures geographic area in which they may engage in business, the ability to solicit customers or receipts 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 in excess of $15,000;
Owned Intellectual Property to any Person; (iii) each Contract currently in effect affecting the ownership of, leasing of, title to, use of, or containing any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having indemnification that represents 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 material obligation 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 Group Company other than in the Ordinary Course ordinary course of Businessbusiness; and
(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, TABLE OF CONTENTS assumed, guaranteed, or secured by any asset of a Group 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) (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; (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, (x) any Contract that is for the employment or engagement of any directors, employees or independent contractors at gross annual compensation in excess of $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 3.7(a) of the Company Disclosure Schedules; (xi) agreement under which it is lessee of or holds or operates any personal property owned by any other party; (xii) 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; (xiii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or 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 (C) 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 cause an assignment of, to or under (as applicable) any material Company Product or any material Company Owned Intellectual Property; (xiv) 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 amendmentcase, supplement, and modification (whether oral or written) in other than with respect of any to wholly owned Subsidiaries of the foregoing. The Company); (xv) any Contract required to be disclosed on Section 3.21 of the Company Disclosure Schedules; (xvi) any Contract with a Top Supplier or Top Customer; and (xvii) 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 listed required to be set forth on Schedule 3.18 are referred to in Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement as 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) 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.
(ci) Each Material Contract identified or required is valid and binding on the applicable Group Company and, to be identified in Section 3.18(a) the knowledge of the Company Disclosure Schedule Company, the counterparty thereto, and is in full force and effect andand represents a legal, is 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 its their terms.
(d) The Company is, and at subject in 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; respects to the Knowledge 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, each 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 Person that has events, would reasonably be expected to result in a material breach of or had any obligation or liability a material default under any Material Contract under which the Company has or had any rights isother party thereto (in each case, 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 timetime or both) may contraveneand (v) as of the date hereof, conflict withno 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 result adjustment submitted by a Group Company in connection with a violation or breach ofGovernment Contract were current, or give the Company or other Person the right 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 declare a default or exercise any remedy underhave in effect, or to accelerate the maturity or performance of, or to cancel, terminate, or modifyand have never had in effect, any Material Contract; and security clearances in connection with the Company has not 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 Contractoperation of their business.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current or completed Material Contract with any Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.18 Schedule 3.15(a) contains a complete and accurate list, and the Company has delivered or made available to Parent true and complete copies, of the following Contracts to which the Company Disclosure Schedule sets forth:or a Subsidiary is a Party (the “Material Contracts”):
(i) each employment, consulting or severance agreement, contract or commitment;
(ii) each Contract currently in effect that involves performance of services by, or delivery of Table of Contents goods or materials to, by the Company for of an amount or value in excess of $15,000300,000 during any twelve-month period prior to the date hereof, except for purchase orders for components or finished goods in the ordinary course of business, consistent with past practices;
(iiiii) each Contract currently that involves performance of services or delivery of goods or materials to the Company of an amount or value in effect that was not excess of $300,000 during any twelve-month period from the date hereof, except for purchase orders for components or finished goods in the ordinary course of business, consistent with past practices;
(iv) each Contract entered into in by the Ordinary Course Company during the preceding twelve months outside the ordinary course of Business and that involves business involving expenditures or receipts of the Company in excess of $15,000150,000;
(iiiv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other 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 and/or conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(iv50,000) each Contract currently in effect relating to during any twelve-month period from 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 employeesdate hereof;
(vi) each joint venture, partnership, and other similar Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other PersonPerson during any twelve-month period from the date hereof;
(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;
(xiiix) each Contract for capital expenditures in excess of $10,000300,000;
(xiiix) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by agreement between the Company other than in the Ordinary Course and any of Businessits customers, manufacturer’s representatives and distributors; and
(xivxi) 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 Except as set forth in Schedule 3.15(b):
(i) no Company Securityholder has or may acquire any rights under, and no Related Person of Company Securityholder has or may become subject to any officer or director of the Company has any rights, obligations obligation or liability under under, any Contract that relates to the business of, or any of the assets owned or used by, the Company; and and
(ii) to the Knowledge of the Company, 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 to: (A) engage in or continue any conduct, activity, or practice relating to the Business, business of the Company; or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.. Table of Contents
(c) Each Except as set forth in Schedule 3.15(c), to the Knowledge of the Company, each Material Contract identified or required to be identified in Section 3.18(aSchedule 3.15(a) of the Company Disclosure Schedule is in full force and effect and, and is valid and enforceable in accordance with its terms.
(d) The Except as set forth in Schedule 3.15(d):
(i) the Company is, and at all times since January 1, 2013, has been, is in full material 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; Contract;
(ii) to the Knowledge of the Company, 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 January 1, 2013, has been, is in full material compliance with all applicable terms and requirements of such Material Contract; ;
(iii) to the Knowledge of the Company, 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 and
(iv) the Company has not given, given to or receivedreceived from any other Person, at any time since January 1, 2013, the date of the Interim Balance Sheet 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.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current or completed Material Contract with any Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.18 3.7(a) of the Company Disclosure Schedule Schedules sets forth:
forth a list of all Contracts (whether written or oral): (i) each Contract currently for the sale of Company services or for the purchase of products or services of at least $200,000 per year or $500,000 in effect the aggregate, (ii) that involves performance purports to limit either the type of services bybusiness in which a Group Company may engage, the geographic area in which they may engage in business or the ability to sell or purchase from any Person, (iii) containing any indemnification, warranty, support, maintenance, or delivery service that represents a material obligation of goods 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, whether incurred, assumed, guaranteed, or materials tosecured by any asset of a Group Company having an outstanding principal amount in excess of $100,000, (vi) involving the Company for acquisition or disposition, directly or indirectly, by merger or otherwise, of assets with an amount or aggregate value in excess of $15,000;
100,000 (ii) each Contract currently in effect that was not entered into other than data assets acquired in the Ordinary Course ordinary course of Business and business), or the shares or Equity Interests of any other Person, (vii) any CBA; (viii) any Contract that involves expenditures is a settlement, conciliation or receipts of similar agreement with any Governmental Entity or pursuant to which the Company or 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 $15,000;
(iii) each Contract currently in effect affecting the ownership of, leasing of, title to, use of, or any leasehold or 250,000 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 Contracts that can be terminated by the Company with without cost or penalty, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other Person;
party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $10,000, (viixi) 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, (xii) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it, or (xiii) 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 currently in effect containing covenants that in any way purport required to restrict the business activity be set forth on Section 3.7(a) of the Company or any Affiliate 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 limit the freedom Section 3.13(c) 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 Disclosure Schedules if entered into prior to the other customer(s) execution and delivery of this Agreement, collectively, 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 Except as set forth on Section 3.18(a3.7(b) of the Company Disclosure Schedule Schedules, 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, 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 Company has or had any rights is, and at all times since January 1, 2013, has been, counterparties thereto are not 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 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 material breach of, or default under, any Material Contract.
(ec) There Except as set forth in Section 3.7(c) of the Company Disclosure Schedule, 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 renegotiations ofsuspension or debarment actions have been commenced or, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current knowledge of the Company, threatened against any of the Group Companies or completed Material Contract 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 Person Government Contracts. Each of the Group Companies has conducted their operations in compliance with the requirements of all applicable Laws and no such Person has made written demand regulations pertaining to all Government Contracts and bids for such renegotiationGovernment 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 (Software Acquisition Group Inc. II)
Material Contracts; No Defaults. (a) Section 3.18 3.7(a) of the Company Disclosure Schedule Schedules sets forth:
forth a list of all Contracts (whether written or oral): (i) each Contract currently for the sale of Company Products or for the purchase of products or services of at least $5,000,000 per year or $5,000,000 in effect the aggregate, (ii) that involves performance purports to limit either the type of services bybusiness in which a Group Company may engage, the geographic area in which they may engage in business or the ability to sell or purchase from any Person, (iii) containing any indemnification, warranty, support, maintenance, or delivery service that represents a material obligation of goods 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, whether incurred, assumed, guaranteed, or materials tosecured by any asset of a Group Company having an outstanding principal amount in excess of $5,000,000, (vi) involving the Company for acquisition or disposition, directly or indirectly, by merger or otherwise, of assets with an amount or aggregate value in excess of $15,000;
5,000,000, or the shares or Equity Interests of any other Person, or (iiviii) 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 currently in effect that was not entered into in the Ordinary Course of Business and that involves expenditures required to be set forth on Section 3.7(a) or receipts Section 3.13(d) of the Company in excess Disclosure Schedules, together with each of $15,000;
(iiithe Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) 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);
(ivSection 3.13(d) 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 Disclosure Schedules if entered into prior to the other customer(s) execution and delivery of this Agreement, collectively, 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 Each Contract 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 a type required to be identified listed in Section 3.18(a3.7(a) of the Company Disclosure Schedule Schedules, whether or not so listed, was entered into at arm’s length. Except for any Material Contract that has terminated, or will terminate, upon the expiration of the stated term thereof prior to the Closing Date, and except as would not reasonably be expected to be material to the Group Companies, taken as a whole, (i) each Material Contract is in full force and effect and represents the legal, valid and binding obligation of the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is valid and enforceable by such Group Company to the extent a party thereto in accordance with its terms.
(d) The Company is, and at subject in 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; respects to the Knowledge 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, 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 January 1, 2013, has been, counterparties thereto are not 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 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 material breach of, or default under, any Material Contract and no event has occurred which, with notice or lapse of time or both, would become a breach or default under any Material Contract, and (iii) the applicable Group Company has not received written notice from any other party to any such Contract that such party intends to terminate or not renew any such Contract.
(ec) There Except as set forth in Section 3.7(c) of the Company Disclosure Schedules, 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 renegotiations ofsuspension or debarment actions have been commenced or, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Company under current knowledge of the Company, threatened against any of the Group Companies or completed Material Contract 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 Person Government Contracts. Each of the Group Companies has conducted their operations in compliance with the requirements of all applicable Laws and no such Person has made written demand regulations pertaining to all Government Contracts and bids for such renegotiationGovernment 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 (Collective Growth Corp)
