Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto. (b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company and, to the knowledge of the Company, the counterparties thereto are not in material breach of, or default under, any Material Contract. (c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 2 contracts
Samples: Business Combination Agreement (Valens Semiconductor Ltd.), Business Combination Agreement (PTK Acquisition Corp.)
Material Contracts; No Defaults. (a) Section 3.7(a3.18 of the Company Disclosure Schedule sets forth:
(i) each Contract currently in effect that involves performance of services by, or delivery of goods or materials to, the Company for an amount or value in excess of $15,000;
(ii) each Contract currently in effect that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of the Company in excess of $15,000;
(iii) each Contract currently in effect affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(iv) each Contract currently in effect relating to the license, sublicense, use, disclosure and development and covenants not-to-xxx with respect to Intellectual Property;
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vii) each Contract currently in effect containing covenants that in any way purport to restrict the business activity of the Company or any Affiliate of the Company or limit the freedom of the Company or any Affiliate of the Company to engage in any line of business or to compete with any Person;
(viii) each Contract currently in effect that provides any customer of Company with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to the other customer(s) of the Company, including contracts containing “most favored nation” provisions;
(ix) each Contract currently in effect providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power of attorney that is currently effective and outstanding;
(xi) each Contract currently in effect entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(xii) each Contract for capital expenditures in excess of $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. The Contracts listed on Schedule 3.18 are referred to in this Agreement as “Material Contracts”.
(b) No Affiliate of the Company and no Related Person of any officer or director of the Company has any rights, obligations or liability under any Contract that relates to the business of, or any of the assets owned or used by, the Company; and no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the Business, or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Each Material Contract identified or required to be identified in Section 3.18(a) of the Company Disclosure Schedules sets forth a list of all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and Schedule is in full force and effect and (ii) the applicable Group Company and, is valid and enforceable in accordance with its terms.
(d) The Company is, and at all times since January 1, 2013, has been, in full compliance with all applicable terms and requirements of each Material Contract under which the Company has or had any obligation or liability or by which the Company, or any of the assets owned or used by the Company is or was bound; to the knowledge Knowledge of the Company, each other Person that has or had any obligation or liability under any Material Contract under which the counterparties thereto are Company has or had any rights is, and at all times since January 1, 2013, has been, in full compliance with all applicable terms and requirements of such Contract; no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Material Contract; and the Company has not in material given, or received, at any time since January 1, 2013, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Material Contract.
(ce) None of There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable by or to the Group Companies has ever been suspended Company under current or disbarred from bidding on Contracts or subcontracts for or completed Material Contract with any Governmental Entity (“Government Contracts”) Person and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies Person has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids made written demand for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businesssuch renegotiation.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Trans World Entertainment Corp)
Material Contracts; No Defaults. (a) Section 3.7(a) 3.8 of the Company Disclosure Schedules sets forth a list of Schedule lists all Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: following oral or written obligations, commitments, agreements, contracts and leases of TEC (the "Material Contracts"):
(i) all existing contracts for the sale sales reasonably expected to involve payments by or to TEC of Company services or for the purchase of products or services of at least more than $500,000 per year or $1,000,000 in the aggregate, 50,000 during any prospective 12 month period; (ii) all indentures, mortgages, security agreements, notes, loan or credit agreements, assignments of rents and leases or other contracts or obligations relating to the borrowing of money by or from TEC (whether long-term or short-term) granting or creating Encumbrances on any property or shares of stock of TEC or to the direct or indirect guaranty or assumption by TEC of such obligations of others; (iii) all contracts or agreements that purports limit the ability of TEC to limit, compete in any material respect, either the type line of business or product line with any person or entity in which a Group Company may engage, the any geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase during any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation period of a Group Company other than in the ordinary course of business, time; (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) all management, consultant, employment, collective bargaining, severance pay or other than in the ordinary course of business, employment related agreements; (v) all agreements with Seller or any Affiliate of Seller; (vi) all other contracts that evidences indebtedness for borrowed moneyare material to the Business as a whole; (vii) all outstanding written offers or bids made by TEC that, whether incurredif accepted, assumed, guaranteed, or secured by would result in a contract required to be disclosed herein; (viii) any asset of contract involving a Group Company having an outstanding principal dollar amount in excess of $500,00050,000 for the furnishing or purchase of machinery, equipment, goods, fuel or services; (viix) any agreement, license or lease relating to real estate, gas rights or mineral rights involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value a dollar amount in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA50,000; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with contract or arrangement or other agreement involving a third party, including for the sharing of profits and joint research or development Contracts expenses; (in each casexi) any agreement providing for disposition of any line of business, other than assets or securities of TEC or any agreement with respect to wholly owned Subsidiaries the acquisition of any line of business, assets or shares of any other business, and any agreement of merger or consolidation or letter of intent with respect to the Company)foregoing; (xii) all contracts and agreements that contain (A) clauses prohibiting, or requiring the giving of notice to, or the consent of, any other person in the event of, a change in control over TEC or (xivB) clauses that deem any Contract required such occurrence to be disclosed on Section 3.20 of the Company Disclosure Schedules, a default (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 an event that with the IP Contracts required to be set forth on Section 3.13(c) passage of time or the Company Disclosure Schedules and each giving of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(anotice may constitute a default) or Section 3.13(can event that gives any other person the right to terminate or modify such contract or agreement (xiii) all contracts to which TEC or an Affiliate is a party relating to or impacting the gas turbines located at the Projects.
(b) Complete copies of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “all Material Contracts”). The Company has Contracts have been furnished or made available to SPAC true and complete copies of Buyer. TEC has complied in all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each material respects with each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company and, to the knowledge of the Company, the counterparties thereto are not in material breach of, or default under, in any respect as to any Material Contract.
(c) None Except as set forth in Section 3.8 of the Group Companies Disclosure Schedule, (i) TEC has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) complied in all material respects with, and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against is not in default under any of the Group Companies Material Contracts, (ii) TEC has not granted, nor been granted, any waiver 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 forbearance with respect to any Government Contracts. Each Material Contract, (iii) the Material Contracts are valid and are in full force and effect as to TEC, as applicable, and, to the actual knowledge of TEC, as to the other parties thereto as of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effectdate hereof, and have never had (iv) except as otherwise noted and reserved against in effectthe Financial Statements, none of such Material Contracts would reasonably be expected to result in the successful assertion or claim of any security clearances liability against TEC in connection with excess of that anticipated by the operation Material Contract. TEC has not received or issued a notice of their businessdefault under any Material Contract, and no event has occurred or, to Seller's knowledge, would reasonably be expected to occur which (after notice and lapse of time or both) would become a breach or default under any Material Contract, or permit modification, cancellation, acceleration or termination of any Material Contract (other than termination solely as the result of the expiration, absent a default, of the term of the Material Contract). Except as set forth in Section 3.8 of the Disclosure Schedule, neither the Amalgamation nor the consummation of the stock and purchase and sale contemplated hereby will terminate or invalidate any of the Material Contracts (or serve as grounds for such termination or invalidation) or require the consent of any contracting party to maintain the effectiveness of such Material Contract as a result of the Amalgamation or the consummation of the stock purchase and sale contemplated hereby.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules Schedule 4.12 sets forth a complete and accurate list of all of the following Contracts (whether written or oral) to which a Group any Company Entity is a party or by which it is bound, as of the date hereof: hereof (such Contracts, together with all Contracts concerning the Leased Real Property disclosed in Schedule 4.18(b), and all Contracts falling into the following categories and entered into by a Company Entity after the date hereof in accordance with Section 6.02, being “Material Contracts”):
(i) Contracts for the sale or purchase of Company services or for the purchase any of products or services of at least any Company Entity which provides for payments by or to such Company Entity in excess of $500,000 per during calendar year 2020 or $1,000,000 that are expected to involve more than such amount in calendar year 2021 (other than purchase orders entered into or issued in the aggregate, ordinary course of business);
(ii) that purports Contracts for the grant to limitany Person of any most-favored nations, in any material respectpriority, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability exclusive rights to solicit customers or the ability to sell or purchase any product, property of such products or other asset services (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business);
(iii) Contracts for joint ventures, partnerships or sharing of profits, and Contracts for joint or shared marketing activities or expenses;
(iv) under which Contracts containing covenants obligating a Group Company has permitted Entity not to compete in any material asset line of business or with any Person in any geographical area;
(v) Contracts containing covenants obligating a Company Entity not to become subject solicit or hire any Person with respect to a Lien employment (including Permitted Liens) other than Contracts with contractor agencies or otherwise in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, );
(vi) involving Contracts relating to the acquisition or dispositiondisposition by a Company Entity (by merger, directly purchase of stock or indirectly, by merger assets or otherwise, of assets or Equity Interests ) of any other Person line of business or a material amount of stock or assets (other than another Group Company) with an aggregate value Contracts to purchase inventory in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, bulk in the ordinary course of business), in each case if entered into in the past three (3) pursuant years, or under which any Liabilities remain outstanding;
(vii) Contracts evidencing Indebtedness in excess of $200,000 (whether incurred, assumed, guaranteed or secured by any asset);
(viii) except for standard indemnification provisions in Contracts entered in the ordinary course of business with customers or suppliers, any Contract under which any Company Entity is required to which provide continuing indemnification or a Group Company has material ongoing guarantee of obligations of any Person (other than confidentiality obligations)the other Company Entity) or the assumption of any Tax, or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price environmental or other contingent or deferred payment obligation exceeding $500,000, (vii) Liability of any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, Person;
(ix) any Contract that is for under which any Company Entity has advanced or loaned any amount to any of its managers, directors or executive officers in the employment past three (3) years and such advance or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, loan remains outstanding;
(x) agreement under which it is lessee any Contract between any Company Entity, on the one hand, and any of their respective directors or holds or operates any personal property owned by any executive officers, on the other party, except for any lease of personal property under which hand (other than the aggregate annual rental payments do not exceed $500,000, Employment Contracts and indemnification agreements that have been made available to Acquiror);
(xi) agreement pursuant all Employment Contracts which are not cancellable without material penalty (including any severance or other termination payment) or without more than thirty (30) days’ notice (other than offer letters that do not deviate in any material respect from the standard offer letter provided to which the Company is granted a lease in, a sublease in, Acquiror);
(xii) Contracts with independent contractors or the right to use or occupy any land or building consultants that require the Group Companies to make annual cash payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant 150,000 to which a Company Entity is a party and which are not cancellable without material penalty (including any Group Company may be required to pay milestones, royalties termination payment) or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or without more than thirty (B30) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, days’ notice;
(xiii) that establish a joint venture, partnership collective bargaining or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), similar labor agreements;
(xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or with a Governmental Authority;
(xv) agreement any Contract under which it any Company Entity is lessor obligated to make any capital commitment or expenditure in excess of $200,000 individually or permits $500,000 in the aggregate, during any third party twelve (12)-month period;
(xvi) Contracts for the storage, treatment, disposal, recycling, investigation, removal or remediation of Hazardous Materials; and
(xvii) any other Contract that is material to hold any Company Entity, provides for consideration in excess of $200,000 annually or operate any personal property owned $500,000 in the aggregate and is not previously disclosed pursuant to this Section 4.10, Section 4.18 or controlled by it Section 4.12(b) (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts other than purchase orders entered into after or issued in the date ordinary course of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”business). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (iExcept as set forth in Schedule 4.12(b) Each or Schedule 4.18(b) below, each Material Contract is valid valid, binding and binding enforceable on the applicable Group Company andEntity in accordance with its terms, assuming the validity and enforceability of such agreement against the counterparties and except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or in equity). None of the Company Entities or, to the knowledge Knowledge of the Company, the counterparty thereto, and any other party thereto is in full force and effect and breach of or default under (ii) the applicable Group Company and, or is alleged to the knowledge be in breach of the Company, the counterparties thereto are not in material breach of, or default under) in any material respect, or has provided or received any written notice of any intention to terminate, any Material Contract.
. Complete and correct copies of each Material Contract (cincluding all modifications, amendments and supplements thereto) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, made available to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessAcquiror.
Appears in 1 contract
Samples: Merger Agreement (Acamar Partners Acquisition Corp.)
Material Contracts; No Defaults. (a) Except for the Government Contracts and Government Subcontracts, Section 3.7(a2.8(a) of the Company Sellers' Disclosure Schedules sets forth Letter contains a list complete and accurate list, and the Sellers have delivered or made available to the Buyer true and complete copies, of all Contracts of the following contracts, agreements, commitments, arrangements or plans (including all amendments, supplements and modifications thereto, whether written or oral) (x) to which a Group the Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregateparty, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (ivy) under which a Group the Company has permitted or may acquire any material asset to rights or has or may become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, any obligations or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity liabilities or (Bz) pursuant to by which the Company or any of its Subsidiaries will have assets, properties or rights are or may become bound or subject:
(i) each agreement or series of related agreements intended to be treated as one agreement for the purchase of materials, supplies, goods, services, equipment or other assets providing for aggregate payments by the Company over the remaining term of such agreement or related agreements of $250,000 or more;
(ii) each sales, distribution, agency or other similar agreement providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets that provides for aggregate payments to the Company over the remaining term of the agreement of $250,000 or more;
(iii) each agreement relating to Indebtedness (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(iv) each joint venture, partnership, limited liability company or other agreements or arrangements involving a sharing of profits, losses, costs or liabilities by the Company with any other Person;
(v) each agreement or series of related agreements intended to be treated as one agreement, including any option agreements, relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material outstanding obligation real property (whether by merger, sale of stock, sale of assets or otherwise);
(vi) each agreement that (A) limits the freedom of the Company to compete in any line of business or with any Person or in any area or which would so limit the freedom of the Buyer, any member of the EDO Group or the Company after the date Closing or (B) contains exclusivity obligations or restrictions binding on the Company or that would be binding on the Buyer or any member of this Agreementthe EDO Group after the Closing;
(vii) each agreement relating to any interest rate, currency or commodity derivatives or hedging transaction;
(viii) each agreement (including any "take-or-pay" or keepwell agreement) under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of the Company or (B) the Company has directly or indirectly guaranteed liabilities or obligations of any other Person (in each case other than endorsements for the purpose of collection in the Ordinary Course of Business);
(ix) any Contract that is each agreement for the employment or engagement of any directors, employees or independent contractors at annual compensation capital expenditures in excess of $500,000 250,000;
(x) each agreement that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(xi) each agreement, commitment or arrangement providing for commission or royalty payments to any Person based on sales, purchases or profits (as opposed to direct payments for goods or services);
(xii) each powers of attorney issued by or on behalf of the Company that is currently in effect;
(xiii) each IP Contract; and
(xiv) all other than agreements, commitments, arrangements or plans that are (A) Contracts that can be terminated by not made in the Company without cost or penalty Ordinary Course of Business or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant material to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) Each agreement, commitment, arrangement or plan disclosed in the Sellers' Disclosure Letter or required to be disclosed thereon pursuant to this Section or Sections 2.9, 2.10, 2.15, 2.17 or 2.24 hereof (ieach a "Material Contract") Each Material Contract is valid a valid, binding and binding on the applicable Group Company and, to the knowledge enforceable agreement of the Company, the counterparty thereto, Company and is in full force and effect effect. Except as set forth in Section 2.8(b) of the Sellers' Disclosure Letter:
(i) the Company is, and at all times since the date of the respective Material Contract (including any Material Contracts that have been superseded by the Material Contracts currently in effect), (A) has been in full compliance with all material terms and material requirements of each Material Contract, (B) has complied in all material respects with all requirements of applicable Law pertaining to each Material Contract, and (C) any representations, warranties and certifications executed, acknowledged, contained or set forth in each Material Contract were true, correct and complete in all material respects as of their effective date;
(ii) the applicable Group Company and, to the knowledge Knowledge of the CompanySellers, each other Person that has or had any obligation or liability under any Material Contract under which the Company has or had any rights is, and at all times since the conclusion of such Material Contract has been, in full compliance with all applicable material terms and requirements of such Material Contract, and none of such Persons is in default or breach in any material respect under (or is alleged to be in default or breach in any material respect under) any of the terms of such Material Contract;
(iii) no event or circumstance has occurred that, with or without notice or lapse of time or both, would constitute any event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder;
(iv) since the date of any particular Material Contract (including any Material Contracts that have been superseded by the Material Contracts currently in effect), the counterparties thereto are Company has not in material given to or received from any other Person any notice regarding any actual, alleged, possible or potential violation or breach of, or default under, any such Material Contract or any intention to terminate any such Material Contract; and
(v) there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate in any material respect any Material Contract (including, without limitation, any material amounts paid or payable to or by the Company under any current or completed Material Contracts), and no Person has made written demand for such renegotiation.
(c) Each of the Material Contracts relating to the sale, design, manufacture or provision of products or services by the Company have been entered into in the Ordinary Course of Business and without the commission of any act alone or in concert with any other Person, and without any consideration having been paid or promised that is or would be in violation of any applicable Law. To the Knowledge of the Sellers, all active orders under each such Material Contract can be completed at a profit (it being understood that whether any such order is completed at a profit shall be determined without giving effect to the transactions contemplated by this Agreement), within the time specified therein, without significant increase in personnel currently employed by or assets currently owned by the Company.
(d) Except as set forth in Section 2.8(d) of the Sellers' Disclosure Letter:
(i) None of the Group Companies Sellers (and no Related Person of any Seller) has ever been suspended or disbarred from bidding on may acquire any rights, or has or may become subject to any obligation or liability, under any Material Contract, or any of the assets owned or used by the Company; and
(ii) no shareholder, director, officer or employee of the Company nor, to the Knowledge of the Sellers, any agent, consultant or contractor of the Company, is bound by any Material Contract that purports to limit the ability of such shareholder, director, officer, agent, employee, consultant or contractor to (A) engage in or continue any conduct, activity, or practice relating to the Business or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(e) Section 2.8(e) of the Sellers' Disclosure Letter contains a true and complete list (in the case of classified Government Contracts or subcontracts for Government Subcontracts, without specifying the counterparty thereto), and the Sellers have delivered or made available to the Buyer (or, in the case of classified Government Contracts or Government Subcontracts, made available to the Buyer's personnel with any Governmental Entity appropriate security clearances) true and complete copies, of all Government Contracts (“Government Contracts”including, without limitation, options) and no suspension Government Subcontracts currently in force. Except as set forth in Section 2.8(e) of the Sellers' Disclosure Letter,
(A) the Company has complied with all material terms and conditions of each Government Contract or debarment actions have been commenced Government Subcontract, (B) the Company has complied in all material respects with all requirements of any applicable Law and the terms of any agreements pertaining to each Government Contract or Government Subcontract and (C) all representations, warranties and certifications executed, acknowledged, contained or set forth in each Government Contract or Government Subcontract were true, complete and correct in all material respects as of their effective date, and the Company has complied in all respects with all such representations, warranties and certifications;
(ii) (A) neither the U.S. Government nor any prime contractor, subcontractor or other Person has notified the Company in writing or, to the knowledge Knowledge of the Sellers, orally, that the Company has breached or violated any requirement of any applicable Law or any certification, representation, clause, provision or other requirement pertaining to any Government Contract or Government Subcontract, (B) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to any Government Contract or Government Subcontract, (C) no material cost incurred by the Company pertaining to any Government Contract or Government Subcontract has been questioned or challenged by representatives of the Administrative Contracting Officer or the Defense Contract Audit Agency, has been disallowed by the U.S. Government, or has been or now is, the subject of any investigation, and (D) no amount of money due to the Company in connection with any Government Contract or Government Subcontract has been withheld or set off, nor has any claim been made to withhold or set off money, and the Company is entitled to all progress payments received with respect thereto;
(A) neither the Company, threatened against nor any of the Group Companies or any of such Group Company’s its shareholders, directors, officers or employees. None , nor, to the Knowledge of the Group Companies Sellers, any of its consultants or agents, is or during the past three years has received any notice that they are being audited been under administrative, civil or investigated criminal investigation or indictment by any Governmental Entity Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contracts. Each Contract or Government Subcontract, and (B) during the past five (5) years, the Company has not conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Subcontract;
(iv) The Company has not received notice of (A) any outstanding claims against the Company, either by any Governmental Authority or by any prime contractor, subcontractor or vendor, arising under or relating to any Government Contract or Government Subcontract or (B) any material disputes between the Company and any Governmental Authority under the Contract Disputes Act or any other federal statute or regulation or between the Company and any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract;
(v) the Company has no interest in any pending or, to the Knowledge of the Group Companies Sellers, potential claim against any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract, and Section 2.8(e) of the Sellers' Disclosure Letter lists each Government Contract or Government Subcontract which is currently under audit by any Governmental Authority or any other person that is a party to such Government Contract or Government Subcontract;
(vi) the Company has conducted their operations not been debarred or suspended from participation in material compliance the award of contracts with any Governmental Authority (excluding for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements), there exist no facts or circumstances that would warrant suspension or debarment or the finding of non-responsibility or ineligibility on the part of the Company, no payment has been made by the Company or by any Person on behalf of the Company in connection with any Governmental Contract or Governmental Subcontract in violation of any requirements of all applicable Laws Law relating to procurement or in violation of, or requiring disclosure pursuant to, the Foreign Corrupt Practices Act, and regulations pertaining the Company's cost accounting and procurement systems and the associated entries reflected in the Company's financial records with respect to all the Government Contracts and bids for Government Contracts. The Group Companies do not have Subcontracts are in effectcompliance in all material respects with all requirements of any applicable Law;
(vii) neither the Company, nor are they required any of its shareholders, directors, officers or employees, nor, to have in effect, and have never had in effectthe Knowledge of the Sellers, any security clearances of its consultants or agents, has committed (or taken any action to promote or conceal) any violation of the Arms Export Control Act, the International Traffic in Arms Regulations, as amended, the Atomic Energy Act of 1954, as amended, Executive Order 12958 (April 17, 1995), Executive Order 12829 (January 6, 1993), Executive Order 13292 (March 25, 2003), or any directives and policies issued pursuant thereto, including, without limitation, the National Industrial Security Program Operating Manual (NISPOM); and
(viii) all representations, certifications and statements executed, acknowledged or submitted by or on behalf of the Company to any Governmental Authority, prime contractor, subcontractor or vendor in connection with any Government Contract or any Government Subcontract (or any change or modification thereto) at any time, including but not limited to any statements made in connection with the operation Procurement Integrity Law, 41 U.S.C. Section 423, the Lobbying Disclosure Act of 1995, 2 U.S.C. Section 1601-1612, the Xxxx Amendment, 31 U.S.C. Section 1352, and their businessassociated implementing regulations, contract clauses, representations or certifications, are true, complete and correct in all respects, and the Company has complied in all respects with all such representations, certifications and statements.
Appears in 1 contract
Samples: Stock Purchase Agreement (Edo Corp)
Material Contracts; No Defaults. (a) Section 3.7(aSchedule 3.15(a) of the Company Disclosure Schedules sets forth a contains an accurate and complete list of all Contracts (whether written and oral contracts related to the Business or oral) to which a Group Company is a party as Purchased Assets of the date hereof: following nature or description (i) for the sale “Material Contracts”):
i. each Contract that involves performance of Company services or for the purchase delivery of products goods or services materials by Seller of at least $500,000 per year an amount or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 5,000;
ii. each Contract that was not entered into in the Ordinary Course of Business;
iii. each Lease;
iv. each Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
v. to the Seller’s Knowledge, each Contract containing covenants that in any way purport to restrict Seller’s business activity or limit the freedom of Seller to engage in any line of business activity or limit the freedom of Seller to engage in any line of business or to compete with any Person;
vi. each Contract providing for payments to or by any Person based on sales, purchases or profits of Seller, other than assets acquired and sales direct payments for goods;
vii. each power of material, supply and inventory, in each case, in the ordinary course attorney of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) Seller 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 currently effective and outstanding;
viii. each Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation capital expenditures by Seller in excess of $500,000 other than (A) Contracts that can be terminated by 5,000;
ix. each Contract of Seller not denominated in U.S. dollars;
x. except where the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedulesfailure to disclose would not have a Material Adverse Effect, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other partyeach written warranty, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or guaranty and/or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than undertaking with respect to wholly owned Subsidiaries contractual performances extended by Seller other than in the Ordinary Course of Business;
xi. for the avoidance of doubt, all agreements for use of any Software (other than any license implied by the sale of a product and perpetual, paid-up licenses for commonly available Software programs with a value of less than $2,500); and
xii. except where the failure to disclose would not have a Material Adverse Effect, each amendment, supplement and modification (whether oral or written) in respect of any of the Company), (xivforegoing.
xiii. Schedule 3.15(a) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set sets 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 reasonably complete copies of all Material details concerning such Contracts, including any supplementations or amendments theretothe parties to each Contract and the amount of the remaining commitment of Seller Parties under each Contract.
(b) (i) Each Except as set forth in Schedule 3.15(b):
i. each Material Contract identified or required to be identified in Schedule 3.15(a) and which is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and be assigned to or assumed by Buyer under this Agreement is in full force and effect and is valid and enforceable in accordance with its terms;
ii. each Material Contract identified or required to be identified in Schedule 3.15(a) and which is being assigned to or assumed by Buyer is assignable by Seller Parties to Buyer without the Consent of any other Person;
iii. to the Seller’s Knowledge, no Material Contract identified or required to be identified in Schedule 3.15(a) and which is to be assigned to or assumed by Buyer under this Agreement will, upon completion or performance thereof, have a Material Adverse Effect; and
iv. each Material Contract has been entered into in the Ordinary Course of Business.
(c) Except as set forth in Schedule 3.15(c):
i. Seller Parties are, and at all times since December 31, 2005, have been, in compliance with all applicable material terms and requirements of each Contract which is being assumed by Buyer;
ii) the . to Seller’s Knowledge, each other Person that has or had any obligation or liability under any Material Contract which is being assigned to Buyer is, and always has been, in full compliance with all material applicable Group Company andterms and requirements of such Material Contract;
iii. no event has occurred or circumstance exists that, to Seller’s Knowledge, with or without notice or lapse of time, contravenes, conflicts with or results in a breach of, or gives Seller Parties or any other Person the knowledge right to declare default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify any Material Contract that is being assigned to or assumed by Buyer;
iv. to Seller’s Knowledge, no event has occurred or circumstance exists under or by virtue of any Material Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the CompanyPurchased Assets;
v. Seller Parties have never given to or received from any other Person, the counterparties thereto are not in material 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.Contract which is being assigned to or assumed by Buyer; and
(c) None of the Group Companies has ever been suspended vi. there are no renegotiations of, attempts to renegotiate or disbarred from bidding on outstanding rights to renegotiate any material amounts paid or payable to Seller Parties under current or completed Material Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) Person having the contractual or statutory right to demand or require such renegotiation and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies Person has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids made written demand for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businesssuch renegotiation.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(a) i. The Company has delivered or made available to Parent true and complete copies of the Company Disclosure Schedules sets forth a list of all following Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (ivdefined below) under which a Group any Acquired Company has permitted any material asset rights, under which any Acquired Company has or is reasonably likely to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteedany obligation or liability, or secured by which any asset Acquired Company or any of a Group Company having the assets owned by it is or is reasonably likely to become bound:
(1) each Contract involving performance of services or delivery of goods or materials by one or more Acquired Companies of an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 or its foreign currency equivalent annually;
(other than assets acquired and sales 2) each Contract involving expenditures or receipts of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), one or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation more Acquired Companies in excess of $500,000 or its foreign currency equivalent annually;
(3) each collective bargaining agreement and other than Contract to or with any labor union or other employee representative of a group of employees;
(A4) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any each employment and consulting Contract with any Person employee of any Acquired Company;
(A5) pursuant each joint venture, partnership and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(6) each Contract containing covenants that materially restrict the business activity of any Acquired Company or any affiliate of any Acquired Company or limit the freedom of any Acquired Company or any affiliate of an Acquired Company to which engage in any Group Company may be required line of business or to pay milestones, royalties or other contingent payments compete with any Person;
(7) each Contract relating to the borrowing of money in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or its foreign currency equivalent;
(B) under 8) each real property lease to which any Group Acquired Company grants is subject;
(9) all Contracts described in (i) through (viii) are collectively referred to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for as the sharing of profits and joint research or development Contracts ("Material Contracts".
ii. Except as set forth in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure SchedulesSchedule, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and (ii) is valid and enforceable in accordance with its terms. Except as set forth in the applicable Group Company andDisclosure Schedule, each Acquired Company is, to the knowledge Knowledge of the Company, the counterparties thereto are not in compliance in all material breach of, or default under, any respects with all applicable terms and requirements of each Material Contract.
(c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(aPart 3.17(a) of the Company Disclosure Schedules sets forth a list Schedule lists and the Company has made available to Purchaser (subject, in the case of all Contracts clause (whether written or oralxiii) below, to which a Group Company is a party 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 hereof: of this Agreement to which any of the Acquired Companies is a party (including any amendment or supplement to any of the foregoing):
(i) for with any Related Party (other than the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, Benefit Plans and Employment Contracts);
(ii) that purports with sources of patient referrals to limitany of the Acquired 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) evidencing or governing Indebtedness material to the Acquired Companies taken as a whole (excluding, for the avoidance of doubt, Contracts evidencing Liabilities with respect to deposits and accounts, trade payables, letters of credit or capital leases);
(iv) evidencing restrictions on the ability of any Acquired Company or any of its Subsidiaries or, after giving effect to the Contemplated Transactions, Purchaser or its Subsidiaries, to engage in any material respectline of business or to compete with any Person in any geographic area (other than the Benefit Plans or Employment Contracts);
(v) evidencing the employment of, either or the type 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 in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from 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 sell which any product Acquired Company has continuing obligations with respect to indemnification or purchase price;
(viii) 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 any Acquired Company, (B) with respect to the voting of any Shares or any other ownership 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 asset ownership interest in such Acquired Company;
(ix) to which any Governmental Body is a party;
(x) relating to the purchase of materials, equipment or perform 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 case;
(xi) constituting a medical director agreement, management services agreement or acute services agreement;
(xii) except for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than the Employment Contracts and Benefit Plans or as entered into in the ordinary course of business, (iv) under which the performance remaining thereunder involves the receipt of cash or other consideration in an amount or having a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 per annum in the aggregate;
(xiii) evidencing the settlement of any Legal Proceeding to which any Acquired Company was a party for an amount in excess of $50,000 or to 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 Business (excluding commercially available off-the-shelf software);
(xvi) evidencing Contingent Payment Contracts; and
(xvii) constituting any other than assets acquired Contract that is material to the Company Business. Each of the foregoing is a “Material Contract.”
(b) Each Material Contract and sales of material, supply and inventoryeach Personal Property Lease, 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”the applicable Acquired Company, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlementvalid and binding obligation of each such Acquired Company, conciliation and 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 agreement with any Governmental Entity or laws affecting the enforcement of creditor’s rights in effect from time to time, and (By) pursuant to which the Company or any general principles of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, equity.
(ixc) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation Except as set forth in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(dPart 3.17(c) of the Company Disclosure SchedulesSchedule, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each the terms of each Material Contract is valid and binding on the are in compliance with applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is Legal Requirements in full force and effect and all material respects; (ii) the applicable Group Company and, to the knowledge none of the Company, the counterparties thereto are not in material breach ofAcquired Companies has violated or breached, or committed any default under, any Material Contract.
; (ciii) None to the Knowledge of the Group Company, no other Person has violated or breached, or committed any default under, any Material Contract; and (iv) there does not exist any event, occurrence or condition, including the consummation of the Contemplated Transactions, which (with or without notice or lapse of time, or both) would constitute a violation or default thereunder by any of the Acquired Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge Knowledge of the Company, threatened against any of other party to such Material Contract, except where the Group Companies failure to so comply or any of for such Group Company’s directorsviolations, officers breaches or employees. None of defaults that would not, individually or in the Group Companies has received any notice that they are being audited aggregate, have or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required be reasonably be expected to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessa Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Davita Inc)
Material Contracts; No Defaults. (a) Section 3.7(a3.16(a) of the Company Disclosure Schedules sets forth a list Letter lists each of all Contracts (whether written or oral) the following contracts and agreements to which a Group the Company is a party or is bound as of the date hereof: , excluding the Benefit Plans and Benefit Agreements (such contracts and agreements, “Material Contracts”):
(i) for any joint venture, partnership or other similar Contract requiring the sale sharing of Company services revenues, profits or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, losses;
(ii) that purports any Contract for any Company Personnel relating to limittheir employment by the Company;
(iii) any note, indenture, loan agreement, credit agreement, financing agreement, or other evidence of Indebtedness relating to the borrowing of money, making any loans or advances by the Company, any guaranty made by the Company in favor of any person, or any letter of credit issued for the account of the Company;
(iv) any Contract limiting or purporting to limit in any material respect, either respect the type right of business or product line in which a Group the Company may engage, the geographic area in which they may to engage in any line of business, to develop, market, or distribute Company products or services, or to compete with any person;
(v) any Contract entered into and not yet consummated relating to the ability to solicit customers acquisition or disposition by the ability to sell Company of any operating business, assets or purchase any product, property capital stock or other asset equity interests of any other person;
(tangible vi) any Contract providing for indemnification, “earn-out” or intangibleother contingent payment obligations of the Company in connection with an acquisition or disposition of an operating business payable after the date hereof (other than any such Contracts relating to the Transactions);
(vii) any Contract entered into in the last 24 months for the settlement of any Legal Proceedings, including threatened or pending Legal Proceedings;
(viii) any Contract pursuant to which the Company has granted to any third person rights under any Company-owned Intellectual Property (other than (a) confidentiality or non-disclosure agreements and (b) non-exclusive licenses to end-users, contractors, consultants, or any servicesdevelopers, from any other Person or in each case pursuant to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than written agreements entered into in the ordinary course on terms that do not differ in substance from the Company’s standard form(s) which have been made available by the Company to Parent as of business, the date hereof);
(ivix) under any Contract pursuant to which a Group third person has granted to the Company has permitted rights under any material asset to become subject to a Lien Intellectual Property of such third person (including Permitted Liens) other than (a) consulting, confidentiality or non-disclosure agreements, in each case pursuant to written agreements entered into in the ordinary course on terms that do not differ in substance from the Company’s standard form(s) which have been made available by the Company to Parent as of businessthe date hereof), (vb) licenses for readily available commercial Software, services, products or technology that evidences indebtedness have not been customized for borrowed moneythe Company (“Off-the-Shelf Products”), whether incurred, assumed, guaranteed, or secured by and (c) licenses for any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory“open source” Software, in each case, case entered into in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligationssuch Contracts in this subsection (ix) and those in (a)-(c) of this subsection (ix), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an collectively, the “earnIn-outLicenses”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, ); and
(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, (ixx) any Contract that is for otherwise material to the employment business operations or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries financial condition of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) Each Material Contract (i) Each Material Contract is in full force and effect, and (ii) is a legal, valid and binding on agreement of the applicable Group Company Company, and, to the knowledge of the Company, the counterparty other parties thereto, and is enforceable in full force and effect and (ii) accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditor’s rights generally or limitations on enforceability by principles of equity. Neither the applicable Group Company andnor, to the knowledge of the Company, the counterparties thereto are not any other party, is in material breach of, or default in any material respect under (and no event has occurred that with notice or the lapse of time, or both, would constitute a breach or default in any material respect by the Company) and no party has alleged in writing a breach or default in any material respect under, any Material Contract.
(c) None . The Company has not received any written notice of any breach or default or event that with notice or lapse of time, or both, would constitute a default by the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with Company under any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies Material Contract or any of such Group Company’s directors, officers written notice threatening or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances invoking legal action in connection with the operation performance by the Company of their businessits obligations under any Material Contract. True and complete copies of the Material Contracts and any amendments thereto have been made available by the Company to Parent as of the date hereof.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(aSchedule 4.12(a) of the Company Disclosure Schedules sets forth contains a list listing of all Contracts described in clauses (whether written or orali) through (xv) below to which a Group Company is a party which, as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregatethis Agreement, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, is a party (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than Company Benefit Plans and Contracts relating to insurance policies, which are set forth on Schedule 4.17) (such Contracts that are (or that are required to be) included on Schedule 4.12(a) and each contract with a Material Supplier or Material Customer, the “Material Contracts”). True and complete copies (subject to redaction of certain information) of the Material Contracts have been delivered to or made available to Buyer or its Representatives.
(i) Any lease, sublease or license of personal property requiring (A) Contracts that can be terminated by the Company without cost annual rentals of $250,000 or penalty more or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of aggregate payments by the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess and its Subsidiaries of $500,000500,000 or more;
(ii) Any Contract for the purchase of materials, (xii) any Contract with any Person supplies, goods, services, equipment or other tangible assets that is reasonably anticipated to result in either (A) pursuant to which annual payments by the Company or any Group Company may be required to pay milestones, royalties or other contingent payments in excess of its Subsidiaries of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events more or (B) under which any Group aggregate payments by the 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 of its Subsidiaries of $1,000,000;
(iii) Any sales, distribution or other similar Contract providing for the sale or license by the Company Owned Intellectual Propertyor any of its Subsidiaries of materials, supplies, goods, equipment, services or other assets that is reasonably anticipated to result in payments to the Company or any of its Subsidiaries of $5,000,000 or more in the next twelve (xiii12) that establish a months;
(iv) Each Contract concerning joint venture, partnership or limited liability company agreements or arrangements or the sharing of profits, in each case, with a third party, including for the sharing of profits and joint research or development Contracts party (in each case, other than with respect to wholly owned Subsidiaries of the Company);
(A) Any note, mortgage, indenture or other obligation or agreement or other instrument for or relating to indebtedness for money borrowed from a third party, (B) any guarantee of third party obligations, or (C) any letters of credit, performance bonds or other credit support for the Company or any of its Subsidiaries, in each case, that have an outstanding principal amount in excess of $250,000 individually;
(vi) Each (x) Contract that provides for the ownership of or title to owned real property and (y) lease, rental or occupancy agreement, real property license and other Contract with respect to Leased Real Property;
(vii) Each Contract pursuant to which the Company or any of its Subsidiaries licenses or is authorized to use or distribute material Intellectual Property of another Person, or which otherwise affects the ability of the Company or any of its Subsidiaries to use any Intellectual Property other than employee invention assignment agreements for the benefit of the Company and/or its Subsidiaries, click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are commercially available on standard terms to the public generally with license, maintenance, support and other fees less than $100,000 per year;
(viii) Each Contract pursuant to which the Company or any of its Subsidiaries leases, licenses or otherwise authorizes another Person to use, distribute, sell, resell or incorporate any Intellectual Property;
(ix) Each Contract that restricts in any material respect the Company or any of its Subsidiaries or any of their present or future Affiliates from competing with or engaging in any business activity anywhere in the world or soliciting for employment, hiring or employing any Person;
(x) Each Contract containing any “most favored nations”, exclusivity or similar right or undertaking in favor of any party other than the Company or another Subsidiary of the Company with respect to any goods or services purchased or sold by the Company or any of its Subsidiaries;
(xi) Each Contract that expressly requires the Company or any of its Subsidiaries to purchase all required goods or services from a third party, or sell a certain portion of its output to a third party;
(xii) Each Contract granting to any Person a right of first refusal, first offer or any similar right to purchase any material asset owned by or used by the Company or its Subsidiaries;
(xiii) Each Contract for acquisitions or dispositions (by merger, purchase or sale of assets or stock or otherwise) of assets, as to which the Company or any of its Subsidiaries has continuing obligations or rights;
(xiv) Each Contract with any United States federal Governmental Authority;
(xv) Each Contract required to be disclosed on Section 3.20 that, together with any related Contracts, provides for capital expenditures in excess of $250,000 for any single project or related series of projects;
(xvi) Each Contract that provides for the employment of any current employee of the Company Disclosure Schedulesor any of its Subsidiaries with annual compensation in excess of $250,000, or that contains any change of control payment or similar payment provisions; and
(xvxvii) agreement under which it is lessor of Each Contract related to hedging 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 theretosimilar transactions.
(b) Except as set forth on Schedule 4.12(b), as of the date of this Agreement, all Material Contracts are (i) Each Material Contract is in full force and effect, subject to the Remedies Exception, and (ii) represent the valid and binding on obligations of the applicable Group Company or one of its Subsidiaries party thereto and, to the knowledge of the Company, represent the counterparty valid and binding obligations of the other parties thereto. Except as set forth on Schedule 4.12(b), and is except, in full force each case, where the occurrence of such breach or default would not reasonably be expected to be material to the Company and effect and its Subsidiaries, taken as a whole, (iix) neither the applicable Group Company andCompany, any of its Subsidiaries nor, to the knowledge of the Company, the counterparties any other party thereto are not is in material breach of, of or default under, under any Material Contract.
, (cy) None as of the Group Companies date of this Agreement, neither the Company nor any of its Subsidiaries has ever been suspended received any written claim or disbarred from bidding on Contracts notice of material breach of or subcontracts for or with material default under any Governmental Entity such Material Contract, and (“Government Contracts”z) and no suspension or debarment actions have been commenced oras of the date hereof, to the knowledge of the Company, threatened against no event has occurred which individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such Contract (in each case, with or without notice or lapse of the Group Companies time or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessboth).
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules Schedule 4.12 sets forth a true, complete and accurate list of all of the following Contracts (whether written or oralincluding a description of the terms of any oral Contracts) to which a Group the Company is a party or by which it or its properties, rights or assets is bound, as of the date hereof: hereof (such Contracts, together with all Contracts disclosed in Schedule 4.10(b), and all Contracts falling into the following categories whether or not disclosed on Schedule 4.12, being “Material Contracts”):
(i) Contracts for the sale or purchase of Company services or for the purchase any of products or services of at least $500,000 per year or $1,000,000 in the aggregate, Company with the top ten (ii10) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset and top ten (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, (iii10) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventoryvendors, in each case, based on the aggregate dollar value paid to or received from such counterparty during calendar year 2020, calendar year 2021, calendar year 2022 or that are expected to involve more than such amount in the ordinary course of businesscalendar year 2023;
(ii) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is Contracts for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants grant to any Person of any most-favored nations, priority, or exclusivity rights or any right of first refusal, right of first negotiationoffer or similar right;
(iii) Contracts for joint ventures, option partnerships or sharing of profits, and Contracts for joint or shared marketing activities or expenses;
(iv) Contracts containing covenants obligating the Company not to purchasecompete or engage in any line of business or with any Person in any geographical area;
(v) Contracts containing covenants obligating the Company not to solicit or hire any Person with respect to employment;
(vi) Contracts relating to the acquisition or disposition by the Company (by merger, purchase of stock or assets or otherwise) of any line of business or a material amount of stock or assets, in each case if entered into in the past three (3) years, or option under which any Liabilities remain outstanding;
(vii) Contracts evidencing Indebtedness (whether incurred, assumed, guaranteed or secured by any asset);
(viii) any material Contract under which the Company is required to license rights provide a guarantee of obligations of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(ix) any Contract under which the Company has advanced or loaned any amount to any material of its managers, directors or officers in the past three (3) years and such advance or loan remains outstanding;
(x) any Contract between the Company, on the one hand, and any of their respective directors or officers, on the other hand;
(xi) Contracts with independent contractors or consultants that require annual cash payments in excess of $100,000 to which the Company Product is a party and which are not cancellable without penalty (including any termination payment) or any material Company Owned Intellectual Property, without more than thirty (30) days’ notice;
(xii) collective bargaining or similar labor agreements;
(xiii) that establish a joint venture, partnership or limited liability company any Contract with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), Governmental Authority;
(xiv) any Contract required under which the Company is obligated to be disclosed make any capital commitment or expenditure in excess of $75,000 individually or $175,000 in the aggregate, during any twelve (12)-month period;
(xv) any Contract that provides for any payments, rights or obligations that are conditioned, in whole or in part, on Section 3.20 a change of control with respect to the Company;
(xvi) any Contract that limits or purports to limit the payment of dividends or distributions in respect of the capital stock of the Company, the pledging of the capital stock of the Company Disclosure Schedules, or (xv) agreement under which it is lessor the incurrence of indebtedness for borrowed money or permits any third party to hold guarantees by the Company or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) the ability of the Company Disclosure Schedulesin any material respect to pledge, together sell, transfer or otherwise dispose of any material amount of assets or business;
(xvii) any Company Affiliate Agreement; and
(xviii) Contracts with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules all athletes, brand ambassadors 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 theretocelebrities.
(b) (i) Each Material Contract is valid valid, binding and binding enforceable on the applicable Group Company and, and to the knowledge Knowledge of the Company, each other party thereto in accordance with its terms except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or in equity). Neither the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company andnor, to the knowledge Knowledge of the Company, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any written notice of any intention to terminate, any Material Contract.
. Complete and correct copies of each Material Contract (cincluding all modifications, amendments and supplements thereto) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, made available to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessAcquiror.
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Material Contracts; No Defaults. (a) Section 3.7(a) of the Company Disclosure Schedules Schedule 4.12 sets forth a true and complete list of all of the following Contracts (whether written or oral) to which a Group any Company Entity is a party or by which it or its properties, rights or assets is bound, as of the date hereof: hereof (such Contracts, together with all Contracts concerning the Leased Real Property required to be disclosed in Schedule 4.18(b), and all Contracts falling into the following categories whether or not disclosed on Schedule 4.12, being “Material Contracts”):
(i) Contracts for the sale or purchase of Company services or for the purchase any of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in Company Entity which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person provides for payments by or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group such Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount Entity in excess of $500,000, 250,000 during calendar year 2020 or that are expected to involve more than such amount in calendar year 2021;
(viii) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is Contracts for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants grant to any Person of any most-favored nations, priority, or exclusivity rights or any right of first refusal, right of first negotiationoffer or similar right;
(iii) Contracts for joint ventures, option partnerships or sharing of profits, and Contracts for joint or shared marketing activities or expenses;
(iv) Contracts containing covenants obligating a Company Entity not to purchasecompete or engage in any line of business or with any Person in any geographical area;
(v) Contracts containing covenants obligating a Company Entity not to solicit or hire any Person with respect to employment;
(vi) Contracts relating to the acquisition or disposition by a Company Entity (by merger, purchase of stock or assets or otherwise) of any line of business or a material amount of stock or assets, in each case if entered into in the past three (3) years, or option under which any material Liabilities remain outstanding;
(vii) Contracts evidencing Indebtedness in excess of $250,000 individually or $1,000,000 in aggregate (whether incurred, assumed, guaranteed or secured by any asset), except any such agreement solely between or among Company Entities;
(viii) any Contract under which any Company Entity is required to license rights provide continuing indemnification or a guarantee of obligations of any Person (other than the other Company Entity) or the assumption of any Tax, environmental or other Liability of any Person (except for standard indemnification provisions entered in the ordinary course of business with customers or suppliers);
(ix) any Contract under which any Company Entity has advanced or loaned any amount to any material of its managers, directors or officers in the past three (3) years and such advance or loan remains outstanding;
(x) any Contract between any Company Product Entity, on the one hand, and any of their respective directors or officers, on the other hand;
(xi) Contracts with independent contractors or consultants that require annual cash payments in excess of $150,000 to which a Company Entity is a party and which are not cancellable without penalty (including any material Company Owned Intellectual Property, termination payment) or without more than thirty (30) days’ notice;
(xii) collective bargaining or similar labor agreements;
(xiii) that establish a joint venture, partnership or limited liability company any Contract with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), Governmental Authority;
(xiv) any Contract required under which any Company Entity is obligated to be disclosed make any capital commitment or expenditure in excess of $200,000 individually or $500,000 in the aggregate, during any twelve (12)-month period;
(xv) any Contract that provides for any payments, rights or obligations that are conditioned, in whole or in part, on Section 3.20 a change of control with respect to any Company Entity, other than as provided in the Company Entities’ Organizational Documents;
(xvi) any Contract that limits or purports to limit the payment of dividends or distributions in respect of the capital stock of any Company Entity, the pledging of the capital stock of any Company Entity or the incurrence of indebtedness for borrowed money or guarantees by any Company Entity or the ability of any Company Entity in any material respect to pledge, sell, transfer or otherwise dispose of any material amount of assets or business;
(xvii) any Company Affiliate Agreement;
(xviii) Contracts with the top five brand partners of the Company Disclosure SchedulesEntities measured by revenue or value of goods or services received during the twelve-month period ended December 31, 2019 and the nine-month period ended September 30, 2020;
(xix) Contracts involving the Foundation for which a Company Entity could have material Liability; and
(xx) any other Contract that is material to the Company Entities, taken as a whole, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required provides for consideration to be set forth on paid by a Company in excess of $250,000 annually or $500,000 in the aggregate and, in either case, is not previously disclosed pursuant to this Section 3.7(a) of the Company Disclosure Schedules4.12, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) 4.18 or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”4.12(b). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid valid, binding and binding enforceable on the applicable Group Company Entity and, to the knowledge Knowledge of the Company, each other party thereto in accordance with its terms except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium, fraudulent conveyance or other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or in equity). None of the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company andEntities or, to the knowledge Knowledge of the Company, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged in writing to be in material breach of or default under), or has provided or received any written notice of any intention to terminate, any Material Contract.
. Complete and correct copies of each Material Contract (cincluding all modifications, amendments and supplements thereto) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, made available to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessAcquiror.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(aSchedule 4.16(a) of the Company Disclosure Schedules sets forth a true, complete and accurate list of all of the following Contracts (whether written or oral) to which a Group the Company is a party or by which it or its properties, rights or assets is bound, as of the date hereof: hereof (the “Material Contracts”):
(i) Contracts for the sale or purchase of Company services or for the purchase any of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in Company which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person provide for payments by or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group the Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000100,000 during calendar year 2020, calendar year 2021 or that are expected to involve more than such amount in calendar year 2022;
(viii) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that is Contracts for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants grant to any Person of any most-favored nations, priority, or exclusivity rights or any right of first refusal, right of first negotiationoffer or similar right;
(iii) Contracts for joint ventures, option partnerships or sharing of profits, and Contracts for joint or shared marketing activities or expenses;
(iv) Contracts containing covenants obligating the Company not to purchasecompete or engage in any line of business or with any Person in any geographical area;
(v) Contracts containing covenants obligating the Company not to solicit or hire any Person with respect to employment;
(vi) Contracts relating to the acquisition or disposition by the Company (by merger, purchase of stock or assets or otherwise) of any line of business or a material amount of stock or assets, in each case if entered into in the past three (3) years, or option under which any Liabilities remain outstanding;
(vii) Contracts evidencing Indebtedness (whether incurred, assumed, guaranteed or secured by any asset);
(viii) Contracts under which the Company is required to license rights provide continuing indemnification or a guarantee of obligations of any Person or the assumption of any environmental or other Liability of any Person;
(ix) Contracts under which the Company has advanced or loaned any amount to any material of its managers, directors or officers in the past three (3) years and such advance or loan remains outstanding;
(x) Contracts between the Company, on the one hand, and any of its directors or officers, on the other hand;
(xi) Contracts with independent contractors or consultants that require annual cash payments in excess of $100,000 to which the Company Product is a party and which are not cancellable without penalty (including any termination payment) or any material Company Owned Intellectual Property, without more than thirty (30) days’ notice;
(xii) collective bargaining or similar labor agreements;
(xiii) that establish a joint venture, partnership or limited liability company Contracts with a third partyGovernmental Authority;
(xiv) Contracts under which the Company is obligated to make any capital commitment or expenditure in excess of $50,000 individually or $100,000 in the aggregate, including during any twelve (12)-month period;
(xv) Contracts that provide for the sharing any payments, rights or obligations that are conditioned, in whole or in part, on a change of profits and joint research or development Contracts (in each case, other than control with respect to wholly owned Subsidiaries the Company;
(xvi) Contracts that limit or purport to limit the payment of dividends or distributions in respect of the capital stock of the Company), (xiv) any Contract required to be disclosed on Section 3.20 the pledging of the capital stock of the Company Disclosure Schedules, or (xv) agreement under which it is lessor the incurrence of indebtedness for borrowed money or permits any third party to hold guarantees by the Company or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) the ability of the Company Disclosure Schedulesin any material respect to pledge, together sell, transfer or otherwise dispose of any material amount of assets or business;
(xvii) any Company Affiliate Agreement;
(xviii) Contracts with the IP Contracts required all athletes, brand ambassadors, influencers and celebrities that require annual cash payments in excess of $20,000 to be set forth on Section 3.13(c) of which the Company Disclosure Schedules is a party; and
(xix) any other Contract that is material to the Company and each of the Contracts entered into after the date of is not previously disclosed pursuant to this Agreement that would be required to be set forth on Section 3.7(a4.16(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.4.22
(b) (i) Each Material Contract is valid valid, binding and binding enforceable on the applicable Group Company and, and to the knowledge Knowledge of the Company, each other party thereto in accordance with its terms except as such enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at Law or in equity). Neither the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company andnor, to the knowledge Knowledge of the Company, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any written notice of any intention to terminate, any Material Contract.
. Complete and correct copies of each Material Contract (cincluding all modifications, amendments and supplements thereto) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, made available to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their businessAcquiror.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(aSchedule 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 Company Disclosure Schedules sets forth a list of all following Contracts (whether written or oral) to which the Company or a Group Company Subsidiary is a party as Party (the “Material Contracts”):
(i) each employment, consulting or severance agreement, contract or commitment;
(ii) each Contract that involves performance of services or delivery of Table of Contents goods or materials by the Company of an amount or value in excess of $300,000 during any twelve-month period prior to the date hereof: (i) , except for the sale of Company services purchase orders for components or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than finished goods in the ordinary course of business, consistent with past practices;
(iviii) under which a Group each Contract that involves performance of services or delivery of goods or materials to the Company has permitted of an amount or value in excess of $300,000 during any material asset to become subject to a Lien (including Permitted Liens) other than 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;
(viv) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, each Contract entered into by the Company during the preceding twelve months outside the ordinary course of business involving expenditures or secured by any asset receipts of a Group the Company having an outstanding principal amount in excess of $500,000150,000;
(v) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract 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/or conditional sales agreements having a value per item or aggregate payments of less than $50,000) during any twelve-month period from the date hereof;
(vi) each joint venture, partnership, and other similar Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of Company with any other Person during any twelve-month period from the date hereof;
(other than another Group Companyvii) each Contract containing covenants that restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business or to compete with an aggregate value any Person;
(viii) each power of attorney that is currently effective and outstanding;
(ix) each Contract for capital expenditures in excess of $500,000 300,000;
(other than assets acquired and sales of material, supply and inventory, in x) each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which between the Company or and any of its Subsidiaries will have any material outstanding obligation after the date of this Agreementcustomers, (ix) any Contract that is for the employment or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, manufacturer’s representatives and distributors; and
(xi) agreement pursuant to which the Company is granted a lease ineach amendment, a sublease insupplement, and modification (whether oral or the right to use or occupy written) in respect of any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments theretoforegoing.
(b) Except as set forth in Schedule 3.15(b):
(i) Each Material no Company Securityholder has or may acquire any rights under, and no Company Securityholder has or may become subject to any obligation or liability under, any Contract is valid and binding on the applicable Group Company and, that relates to the knowledge business of, or any of the assets owned or used by, the Company; and
(ii) to the Knowledge of the Company, no officer, director, agent, employee, consultant, or contractor of the counterparty theretoCompany is bound by any Contract that purports to limit the ability of such officer, and director, agent, employee, consultant, or contractor to: (A) engage in or continue any conduct, activity, or practice relating to the 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) 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 Schedule 3.15(a) is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Schedule 3.15(d):
(i) the Company is in material compliance with all applicable terms and requirements of each Material Contract;
(ii) the applicable Group Company and, to the knowledge Knowledge of the Company, the counterparties thereto are not each other Person that has any obligation or liability under any Material Contract is in 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
(iv) the Company has not given to or received from any other Person, at any time since 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.
(c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 1 contract
Material Contracts; No Defaults. (a) Section 3.7(aSchedule 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 Company Disclosure Schedules sets forth a list of all following Contracts (whether written or oral) to which a Group Company is a party as of the date hereof: (i) for the sale of Company services or for the purchase of products or services of at least $500,000 per year or $1,000,000 in the aggregate, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company has any ongoing obligations with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation exceeding $500,000, (vii) any CBA; (viii) any Contract (A) that is a settlement, conciliation or similar agreement with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, (ix) any Contract that Subsidiary is for the employment a party or engagement of any directors, employees or independent contractors at annual compensation in excess of $500,000 other than (A) Contracts that can be terminated by the Company without cost or penalty or (B) Contracts that provide for transaction bonuses payable in connection with the Transactions as disclosed in Section 5.17(d) of the Company Disclosure Schedules, (x) agreement under which it is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments in excess of $500,000, (xii) any Contract with any Person (A) pursuant to which any Group Company may be required to pay milestones, royalties or other contingent payments in excess of $500,000 in any year based on any research, testing, development, sale distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it bound (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 Agreementa “Material Contract” and, collectively, the “Material Contracts”):
(i) each Contract providing for the sale of products or services by the Company or its Subsidiary involving receipts exceeding $250,000 annually or $1,000,000 over the remaining term of such Contract;
(ii) each Contract providing for the purchase of products or services by the Company or its Subsidiary involving payments exceeding $250,000 annually or $1,000,000 over the remaining term of such Contract;
(iii) each lease, rental or occupancy agreement, installment and conditional sale agreement, and other Contract 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, involving annual payments in excess of $100,000;
(iv) each Contract involving Intellectual Property listed on or required to be listed on Schedule 3.21(c)(i) or (iii). The ;
(v) each joint venture, partnership, and other Contract involving a sharing of profits (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 (A) which has furnished continuing material obligations of the Company or made available its Subsidiary thereunder with any 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 its Subsidiary thereunder with any current or former independent contractor for personal services (other than bloggers or other content writers);
(viii) each collective bargaining agreement or other Contract to SPAC true and complete copies which the Company or its Subsidiary is a party with any labor union, works council or other employee representative body;
(ix) each Contract that contains outstanding earn-out, deferred or contingent purchase price or similar contingent payment obligations on the part of all Material Contractsthe Company or its Subsidiary in excess of $250,000;
(x) each Contract that provides for the acquisition of any 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 that relates to Debt of the Company or its Subsidiary in excess of $250,000;
(xii) each Contract 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 each case any supplementations “take-or-pay” or amendments theretokeepwell agreement;
(xiii) each Contract that is between the Company or its Subsidiary, on the one hand, and 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 hand;
(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 in respect of, and each commitment or agreement to enter into, any of the foregoing.
(b) Except as set forth in Schedule 3.16(b), (i) Each neither the Company, its Subsidiary nor, to the Knowledge of Seller, any other party to such Material Contract Contract, is valid and binding on the applicable Group Company in material default or material breach of or has failed to perform any material obligation under a Material Contract, and, to the knowledge Knowledge of the CompanySeller, the counterparty theretothere does not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both); and (ii) each Material Contract is in full force and effect effect, and (ii) is a legal, valid and binding obligation of the applicable Group Company or its Subsidiary, as applicable, and, to the knowledge Knowledge of the CompanySeller, the counterparties thereto are not each counterparty thereto, in material breach ofaccordance with its terms, except as such enforceability may be limited by (A) laws of general application relating to bankruptcy or insolvency, or default under, any Material Contract.
(c) None of the Group Companies has ever been suspended moratorium or disbarred from bidding on Contracts other similar laws affecting or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, relating to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effectcreditors’ rights generally, and have never had (B) rules of law governing specific performance, injunctive relief and other equitable remedies, regardless of whether asserted in effect, any security clearances a Proceeding in connection with the operation of their businessequity or at law.
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Samples: Stock Purchase Agreement (Scripps Networks Interactive, Inc.)
Material Contracts; No Defaults. Schedule 4.9 contains a true, correct, and complete list (including a summary of the material terms of any oral Contract) of each Contract to which Seller is a party or to which any of the Purchased Assets are subject (collectively, the “Material Contracts”), including:
(a) Section 3.7(aContracts limiting or restraining Seller from engaging or competing in any lines of business with any other Person in any market or geographic area;
(b) Contracts relating to any acquisition to be made by Seller of any operating business or the capital stock of any other Person;
(c) other than relating to trade payables, Contracts relating to the incurrence by Seller of Indebtedness, or the making of any loans to another Person or guarantees with respect to Indebtedness of another Person;
(d) any Contract under which any Purchased Asset serves as security or collateral for Indebtedness owed to any other Person;
(e) Contracts which involve the expenditure by Seller of more than $10,000 in the aggregate or require performance by any party more than one year from the date hereof that, in either case, is not terminable by Seller without material penalty on notice of 30 days’ or less;
(f) all employment or similar service agreements between Seller and any director, officer or employee of Seller (including those that may be co-employed with PEO);
(g) all collective bargaining or similar collective or labor agreements relating to any service providers of Seller (including those that may be co-employed with PEO);
(h) any Contract that relates to the Seller’s relationship with the PEO;
(i) Contracts for the lease (i) by Seller of any real or personal property (except personal property leases and installment and conditional sales agreements providing for aggregate annual payments of less than $1,000), or (ii) of the Company Disclosure Schedules sets forth a list of all Contracts Real Property;
(whether written or oralj) any Contract with any third party, the payments to which a Group Company is a party as has represented 5% or more of the date hereof: expenditures of Seller on supplied goods or services in the most recent twelve (12)-month period;
(k) any Contract that relates to the acquisition or divestiture of assets (i) for that is material to the sale operation of Company services the business of Seller, or for the purchase all of products or services of at least $500,000 per year or $1,000,000 in the aggregatethem taken as a whole, (ii) that purports to limit, in any material respect, either the type of business or product line in which a Group Company may engage, the geographic area in which they may engage in business, the ability to solicit customers or the ability to sell or purchase any product, property or other asset (tangible or intangible), or any services, from any other Person or to sell any product or other asset to or perform any services for any other Person, (iii) containing any indemnification that represents a material obligation of a Group Company other than in the ordinary course of business, (iv) under which a Group Company has permitted any material asset to become subject to a Lien (including Permitted Liens) other than in the ordinary course of business, (v) that evidences indebtedness for borrowed money, whether incurred, assumed, guaranteed, or secured by any asset of a Group Company having an outstanding principal amount in excess of $500,000, (vi) involving the acquisition or disposition, directly or indirectly, by merger or otherwise, of assets or Equity Interests of any other Person (other than another Group Company) with an aggregate value in excess of $500,000 (other than assets acquired and sales of material, supply and inventory, in each case, in the ordinary course of business) pursuant to which a Group Company has material ongoing obligations (other than confidentiality obligations), or any Contract pursuant to which a Group Company Seller has any ongoing obligations Liability with respect to an “earn-out”, contingent purchase price, deferred purchase price or other similar contingent payment obligation, or deferred payment obligation exceeding $500,000, (viiiii) that provides for the grant to any CBA; Person of any preferential rights to purchase any of the assets of Seller;
(viiil) any Contract that relates to the distribution, marketing, advertising or sale, or referral of Seller’s products or services, in each case which involved payments by Seller in excess of $1,000 in the most recent twelve (A12) that month period or is a settlement, conciliation or similar agreement with any Governmental Entity or reasonably expected to involve payments by Seller in excess of $1,000 in the twelve (B12) pursuant to which month period ending on the Company or any first anniversary of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, hereof;
(ixm) any Contract that is a joint venture or collaboration agreement with any Person;
(n) any Contract in the most recent twelve (12) month period with any independent contractor or consultant under which Seller has made aggregate payments of $10,000 or more;
(o) any settlement agreement or consent decree entered into between Seller and any current or former employee of Seller or any other Person (including any Governmental Authority);
(p) any Contract providing that Seller indemnify any Person (other than such Contracts entered into in the ordinary course of business for amounts less than $1,000), or any Contract requiring Seller to assume any Tax, environmental or other Liability of another Person;
(q) any Contract that requires any capital commitment or capital expenditure, individually or in the employment or engagement of any directorsaggregate, employees or independent contractors at annual compensation by Seller in excess of $500,000 5,000;
(r) any Contract under which “most favored nation” pricing provisions or any similar provision requiring that a third party (including any insurance company) be offered terms or concessions at least as favorable as those offered to one or more Persons;
(s) any Contract that requires Seller to purchase its total requirements of any product or service from any third party, that contains any exclusivity provision in favor of the counterparty thereto or that contains a “take or pay” provision;
(t) all Contracts relating to Seller Intellectual Property Assets or Third Party Licensed IP to which Seller is a party;
(u) all Contracts creating an Encumbrance on any Purchased Assets other than Permitted Encumbrances;
(Av) all Contracts that can be terminated by between or among Seller on the Company without cost one hand and any Seller Shareholder or penalty or any Affiliate of Seller on the other hand;
(Bw) Contracts that provide for transaction bonuses payable in connection with any Contract related to the Transactions as disclosed in Section 5.17(d) of the Company Disclosure SchedulesBusiness, to which Seller is not a party;
(x) agreement under which it is lessee any Contract not otherwise of a type listed above involving reasonably anticipated aggregate payments to or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $500,000, (xi) agreement pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any land or building that require the Group Companies to make annual payments from Seller in excess of $500,0001,000 annually, (xii) and which does not expire in all respects prior to the Closing. Seller is not in default under or in breach of, or in receipt of any Contract with written claim of default under or breach of, any Person (A) pursuant to which Material Contract. To the Knowledge of Seller, there is not, in respect of any Group Company may be required to pay milestonesother party under any of the Material Contracts, royalties or other contingent payments in excess any existing default, event of $500,000 in any year based on any researchdefault, testing, development, sale distribution, commercial manufacture breach or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, or option to license rights to any material Company Product or any material Company Owned Intellectual Property, (xiii) that establish a joint venture, partnership or limited liability company with a third party, including for the sharing of profits and joint research or development Contracts (in each case, other than with respect to wholly owned Subsidiaries event. Each of the Company), (xiv) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules, or (xv) agreement under which it is lessor of or permits any third party to hold or operate any personal property owned or controlled by it (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with the IP Material Contracts required to be set forth on Section 3.13(c) of the Company Disclosure Schedules and each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) or Section 3.13(c) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). The Company has furnished or made available to SPAC true and complete copies of all Material Contracts, including any supplementations or amendments thereto.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect and (ii) the applicable Group Company constitutes a valid and binding obligation of Seller, enforceable against Seller, and, to the knowledge Knowledge of the CompanySeller, against the counterparties thereto are not other party or parties thereto, in material breach ofaccordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or default under, any Material Contractother similar Laws relating to creditors’ rights generally or by principles of equity.
(c) None of the Group Companies has ever been suspended or disbarred from bidding on Contracts or subcontracts for or with any Governmental Entity (“Government Contracts”) and no suspension or debarment actions have been commenced or, to the knowledge of the Company, threatened against any of the Group Companies or any of such Group Company’s directors, officers or employees. None of the Group Companies has received any notice that they are being audited or investigated by any Governmental Entity with respect to any Government Contracts. Each of the Group Companies has conducted their operations in material compliance with the requirements of all applicable Laws and regulations pertaining to all Government Contracts and bids for Government Contracts. The Group Companies do not have in effect, nor are they required to have in effect, and have never had in effect, any security clearances in connection with the operation of their business.
Appears in 1 contract
