Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by: (i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act; (ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries); (iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party; (iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole; (v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person; (vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries; (vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act; (viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and (ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”. (b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Le Gaga Holdings LTD), Merger Agreement (Chiu Na Lai)
Material Contracts. (a) Except for (i) this Agreement (and except for the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports filed prior to or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries any Company Subsidiary is a party to or bound by:
(i) any Contract that would be is required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits 15 of Form 2010-F K under the Exchange Act;
(ii) any Contract involving the payment relating to any credit, loan or receipt facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of amounts by the Company or any Company Subsidiary) of its Subsidiariesmore than US$2,000,000 for each such Contract individually, or relating to material Indebtedness (other than any Indebtedness solely between or among any of the Company and any of its Subsidiaries)Company Subsidiary;
(iii) any material joint venture contractsContract, strategic cooperationcooperation or partnership arrangements, partnership arrangements or other agreements outside the ordinary course of business agreement involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries Company Subsidiary with any third partyThird Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits in any material respect limits, or purports to limit, the ability of the Company or any of its Subsidiaries or any of their respective employees Company Subsidiary to compete in any material line of business or with any Person person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Persontime;
(vi) any Contract between prohibiting the payment of dividends or among distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, on prohibits the one hand, and any pledging of their respective Affiliates (other than the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to any guaranty by the Company and its Subsidiariesor any wholly owned Company Subsidiary;
(vii) any Contract between providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any of its Subsidiaries and Company Subsidiary, by or to any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange ActThird Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other than Contracts granting Company Options) giving the other party the right to terminate equity interests of another person for aggregate consideration under such Contract as a result (or series of this Agreement or the consummation related Contracts) in excess of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andUS$5,000,000;
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which Contract that are license agreements material to the business of the Company and its the Company Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of pursuant to which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to herein as a “Material Contract”third party in excess of US$1,000,000.
(b) As of the date of this Agreement, except Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of on the Company or its Subsidiaries party thereto anda Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any knowledge of its Subsidiaries nor, to the Company’s Knowledge, any no other party thereto is in material breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and Contract; (iii) to the Company’s Knowledge, the Company and its the Company Subsidiaries have not received any written claim or notice of default, termination or cancellation material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Material Contracts. (a) Except as set forth in the exhibit index for this Agreement and except the Company’s Annual Report on Form 10-K for Contracts filed the year ended September 30, 2005 or as exhibits permitted pursuant to Section 6.1, neither the Company SEC Reports filed prior to the date nor any of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
by (i) any Contract that would be required agreement relating to be filed the incurring of Indebtedness by the Company pursuant to Item 4 or any of its Subsidiaries in an amount in excess of $2,000,000 in the aggregate, including any such agreement which contains provisions that restrict, or may restrict, the conduct of business of the Instructions to Exhibits issuer thereof as currently conducted (collectively, “Instruments of Form 20-F under the Exchange Act;
Indebtedness”), (ii) any Contract involving “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the payment SEC), (iii) any non-competition or receipt exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any material respect (A) the ability of amounts the Company or its Subsidiaries to solicit customers or (B) the manner in which, or the localities in which, all or any portion of the business of the Company and its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent and its Subsidiaries, is or would be conducted, or any non-competition or exclusive dealing agreement, or any other agreement or obligation of the type described in (A) or (B) of this clause (iii) which following the Closing would purport to apply to Parent or any of its Affiliates other than the Company and its Subsidiaries, (iv) any agreement providing for the indemnification, in excess of $1,000,000, by the Company or a Subsidiary of the Company of any Person other than standard form indemnity provisions in agreements with customers of the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiv) any material joint venture contractsor partnership agreement, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(ivvi) any Contract agreement that grants any right of first refusal or right of first offer or similar right or that limits in any material respect or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or any otherwise dispose of their respective employees to compete in any material line assets or business, (vii) any contract or agreement providing for any payments in excess of business or with any Person or entity $1,000,000 that are conditioned, in whole or in any geographic area or during any period part, on a change of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) control of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any paymentcollective bargaining agreement, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are agreement material to the Company and its Subsidiaries, taken as a whole, pertaining to the use of or granting any right to use or practice any rights under any Intellectual Property, (x) any agreements pursuant to which the conduct Company or any of their respective businessesits Subsidiaries leases any material real property or leases any material real property to third parties, (xi) any contract or agreement material to the absence Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company or its Subsidiaries, (xii) any contract or other agreement to which Apogent Technologies Inc. (“Former Company Parent”) or any of its present or former Subsidiaries is a party or otherwise bound, and (xiii) any other contract or other agreement not made in the ordinary course of business consistent with past practice that (A) is material to the Company and its Subsidiaries taken as a whole or (B) would have a Company Material Adverse Effect. Each such Contract described reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated by this Agreement (the agreements, contracts and obligations listed in clauses (i) through (ixxiii) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 4.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contract”Contracts.
(b) As of the date of this Agreement, except as would not have a Each Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation on the Company (or, to the extent a Subsidiary of the Company or its Subsidiaries party thereto is a party, such Subsidiary) and, to the knowledge of the Company’s Knowledge, the any other parties party thereto, (ii) neither and each Company Material Contract is in full force and effect. Neither the Company nor any of its Subsidiaries is in breach or default under any Company Material Contract or is aware of any condition that with the passage of time or the giving of notice or both would result in such a breach or default, except in each case where any such breaches or defaults would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company knows of, or has received written notice of, any breach or default under (nor, to the knowledge of the Company’s Knowledge, does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party thereto is except where any such violation or default would not, individually or in breach or violation ofthe aggregate, reasonably be expected to result in a Material Adverse Effect on the Company.
(c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or default underthat require that any financial payment (other than payment of outstanding principal and accrued interest) be made in the event of the repayment of the outstanding Indebtedness thereunder prior to expiration. For purposes of this Agreement, any Material Contract “Indebtedness” of a Person shall mean (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orsimilar instruments, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) all leases of such Person capitalized in accordance with GAAP, and (iv) all obligations of such Person under sale-and-lease back transactions, agreements to the Company’s Knowledge, the Company repurchase securities sold and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractother similar financing transactions.
Appears in 3 contracts
Samples: Merger Agreement (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as As of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
by any Contract that (i) any Contract that would be required to be filed is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
SEC), (ii) any Contract involving would, after giving effect to the payment Merger, limit or receipt of amounts by restrict the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company Surviving Corporation or any of its Subsidiaries with or any third party;
(iv) any Contract that limits successor thereto, from engaging or competing in any material line of business that it currently engages in or is a reasonable extension thereof (including with respect to Parent after the Effective Time) or in any geographic area or contains exclusivity or non-solicitation provisions with respect to customers, (iii) limits or otherwise restricts the ability of the Company or any of its Subsidiaries to pay dividends or any of their respective employees make distributions to compete in any material line of business its stockholders, or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(viv) any material Contract entered into after June 30, 2011 or not yet consummated, provides for the acquisition operation or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) management of any operating assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or its Subsidiaries by any of its Subsidiaries, on the one hand, and any of their respective Affiliates (person other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any . Each Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of type described in this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreementsSection 3.25, whether or not made in set forth on Section 3.25 of the ordinary course of business, which are material Company Disclosure Schedule and whether or not entered into on or prior to the Company and its Subsidiariesdate hereof, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Company Material Contract”.
(b) As of the date of this Agreement, except as would not have a . Each Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries Subsidiary party thereto enforceable against the Company or its Subsidiary party thereto in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) and, to the Company’s Knowledgeknowledge, the each other parties party thereto, (ii) neither and is in full force and effect, and each of the Company nor any and each of its Subsidiaries norwhich is a party thereto has performed in all material respects all obligations required to be performed by it to the date hereof under each Company Material Contract and, to the Company’s Knowledgeknowledge, any each other party thereto is in breach or violation of, or default under, any to each Company Material Contract and no event has occurred performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not, individually or not occurred through in the Company’s aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation Subsidiaries has knowledge of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not has received any written claim or notice of default, termination or cancellation under any such Material Contract.notice
Appears in 3 contracts
Samples: Merger Agreement (Firstenergy Corp), Merger Agreement (Allegheny Energy, Inc), Merger Agreement
Material Contracts. (a) Except for this Agreement and except for Contracts filed Section 2.14 of the Disclosure Schedule sets forth a list, as exhibits to the Company SEC Reports filed prior to of the date of this Agreement, as of the date hereoffollowing Contracts (each a “Material Contract”) to which the Company and each Subsidiary is a party or by which it or any of their properties, none rights or assets are bound:
(a) any Contract that provides for obligations, payments, Liabilities, consideration, performance of services or the delivery of goods to or by the Company or the Subsidiaries of any amount or value reasonably expected to be in excess of $250,000 annually;
(b) any Contract (i) not to compete in any business or geographic area, (ii) that grants any Person the exclusive right to distribute products of the Company or its the Subsidiaries, (iii) that grants “most favored nation” or similar preferred pricing to any Person, (iv) that grants rights of first refusal, rights of first offer, rights of first negotiation or similar rights or that materially limits the ability of the Company or the Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses, (v) that grants any Person a right to require the Company or the Subsidiaries to purchase all or any portion of the Company’s or the Subsidiaries’ requirements from any third party, or (vi) that obligates the Company or the Subsidiaries to provide maintenance and/or support with respect to any discontinued products of the Company or the Subsidiaries or any prior version of any products of the Company or the Subsidiaries;
(c) any employment agreement, severance agreement, bonus agreement, indemnification agreement, consulting agreement, non-compete agreement, change-in-control or golden parachute agreement or similar agreement with or for the benefit of any employee, director or officer of the Company or the Subsidiaries whose annual total compensation exceeds $150,000;
(d) any collective bargaining agreement with any labor union or other collective bargaining representative;
(e) any Contract related to the assignment, license or other disposition or encumbrance of Intellectual Property Rights owned or used by the Company (other than contracts or agreements for commercially available “off the shelf” software for which the Company pays fees less than $50,000 per year, or the Company’s standard customer contracts);
(f) any Contract in which the ultimate contracting party is a party Governmental Authority;
(g) any Real Property Leases;
(h) any Contract relating to Company Indebtedness or bound by:loans made by the Company, including all notes, mortgages, indentures and other obligations, guarantees of performance, agreements and instruments for or relating to any lending or borrowing (other than advances to employees for expenses in the Ordinary Course of Business or transactions with customers on credit in the Ordinary Course of Business);
(i) any Contract that would be required is a letter of credit, bond or similar arrangement running to be filed by the account of, or for the benefit of, the Company pursuant to Item 4 or the Subsidiaries in an amount in excess of the Instructions to Exhibits of Form 20-F under the Exchange Act$250,000;
(iij) any Contract involving the payment or receipt of amounts by the Company granting any Person a Lien on all or any part of its Subsidiariesthe assets of the Company, or relating to material Indebtedness (other than any Indebtedness solely between Liens which will be released at or prior to the Company Closing and any of its Subsidiaries)Permitted Liens;
(iiik) any material joint venture contracts, strategic cooperation, partnership arrangements Contract with the Top Customers or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third partyTop Suppliers;
(ivl) the Insurance Policies listed on Section 2.16 of the Disclosure Schedule;
(m) any Contract governing any business acquisition or disposition, merger or similar transaction, by the Company, regardless of whether such transaction has yet been consummated, either (i) within the last five (5) years or (ii) pursuant to which any indemnification, earn out or other contingent or deferred payments or similar rights or obligations remain outstanding;
(n) any Contract that limits in provides for the payment of cash or other compensation or benefits upon the Merger and the consummation of the transactions contemplated hereby;
(o) any material respect the ability Contract that relates to voting, transfer or other arrangements related to any equity interests of the Company or any of its the Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiarieswarrants, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital options or other rights to acquire any equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under Subsidiaries (other than this Agreement, the Exchange Act;Merger and the transactions contemplated hereby); or
(viiip) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is otherwise material to the Company operations and its Subsidiaries or (B) the value business prospects of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As All of the date of this AgreementMaterial Contracts are in full force and effect and constitute the valid, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid legal and binding obligation of the Company or the Subsidiaries, as applicable, and to the Knowledge of the Company, constitute the valid, legal and binding obligation of the other parties thereof, enforceable against each such Person in accordance with its terms, subject to (i) the effect of bankruptcy, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditor’s rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law). There are no material breaches or defaults by the Company or the Subsidiaries party thereto andunder any of the Material Contracts or, to the Knowledge of the Company’s Knowledge, events which with notice or the other parties theretopassage of time would constitute a material breach or default by the Company or the Subsidiaries, (ii) and neither the Company nor the Subsidiaries has received written notice of any of its Subsidiaries nor, to the Company’s Knowledge, such material breach or default from any other party thereto is in breach or violation ofunder any of the Material Contracts. To the Knowledge of the Company, or default under, neither the Company nor its Subsidiaries have received notice from any third party to any Material Contract and no event has occurred requesting or threatening to amend, not occurred through the Company’s renew or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any terminate such Material Contract. The Company is not a party to any Contract with a Governmental Authority. The Company has made available to Buyer true and complete copies of all the Material Contracts, including all amendments thereto.
Appears in 3 contracts
Samples: Merger Agreement (Majesco), Merger Agreement (Majesco), Merger Agreement (InsPro Technologies Corp)
Material Contracts. (a) Except for this Agreement contracts (including all amendments and except for Contracts modifications thereto) filed as exhibits to the Company SEC Reports filed prior to Documents, Schedule 3.18(a) of the Company Disclosure Schedules, sets forth a complete and accurate list as of the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound byAgreement of:
(i) any Contract contract that would be is required to be filed by as an exhibit to a report or filing under the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under Securities Act or the Exchange Act;
(ii) any Contract involving the payment contract that involves annual payments or receipt of amounts by consideration from the Company or any of its Subsidiaries, or relating to material Indebtedness subsidiaries of more than $1,000,000 during any twelve (other than any Indebtedness solely between 12) month period and is not terminable by the Company and any of or its Subsidiaries)subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or contract that contains any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect covenant restricting the ability of the Company or any of its Subsidiaries subsidiaries or any of their respective employees to affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business or business, (y) compete with any Person person or entity or (z) operate in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholearea;
(viv) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant contract granting to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates person (other than the Company or any of its Subsidiaries)subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, on the rights of first negotiation or any similar requirement in favor of any person (other hand, that involves payments, taken as whole, that is material to than the Company and or any of its Subsidiariessubsidiaries);
(vi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any Contract between loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its Subsidiaries subsidiaries in excess of $1,000,000 is outstanding or may be incurred and any director all guarantees of or executive officer of by the Company or any Person beneficially owning five percent or more of its subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 date of Form 20-F under the Exchange Actthis Agreement;
(viii) any Contract contract with or with respect to a labor union, guild or other employee representative (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement including any collective bargaining agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andworks council agreement);
(ix) any other contracts and agreementscontract that requires a consent to or otherwise contains a provision relating to a change of control, whether or not made that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or any of its subsidiaries in excess of $1,000,000 in the ordinary course of business, which are material to aggregate;
(xi) any contract providing for indemnification by the Company and or any its Subsidiariessubsidiaries of any officer, taken director or employee of the Company or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company or any of its subsidiaries to any person of material properties, assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its subsidiaries is a whole, party or the conduct by which any of their respective businesses, or the absence of which would have a Company Material Adverse Effectthem is bound. Each such Contract contract described in any of clauses (i) through (ixxii) above of this Section 3.18(a) (and each such Contract contract entered into after the date of this Agreement that would be a Material Contract but for have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the exception date of being filed as an exhibit to the Company SEC Reports this Agreement) is referred to herein as a “Company Material Contract”.
(b) As Prior to the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement, except as would not have a .
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Adverse EffectContract and no event or condition has occurred that constitutes, (i) each or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default under the terms or conditions of any Company Material Contract. Each Company Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the knowledge of the Company’s Knowledge, the is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other parties theretosimilar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) neither the Company nor any equitable remedies of its Subsidiaries nor, specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, discretion of the court before which any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractproceeding therefor may be brought.
Appears in 3 contracts
Samples: Merger Agreement, Agreement and Plan of Merger (Norcraft Companies, Inc.), Merger Agreement (Fortune Brands Home & Security, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Agreement, Section 4.17 of the Company SEC Reports filed prior to the date of this AgreementDisclosure Letter contains a complete and correct list, as of the date hereof, none of each Contract described below in this Section 4.17(a) under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any Company Subsidiary is a party or to which any of their respective properties or assets is subject, in each case as of the date hereof other than Company Benefit Plans listed on Section 4.10(a) of the Company Disclosure Letter (all Contracts of the type described in this Section 4.17(a) (other than this Agreement), whether or its Subsidiaries is a party not set forth on Section 4.17 of the Company Disclosure Letter, being referred to or bound by:herein as the “Material Contract”):
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any each Contract that limits in any material respect the ability freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Acceptance Time) to compete or engage in any line of business or geographic region or with any Person, or sell, supply or distribute any product or service or that otherwise has the effect of restricting the Company, the Company Subsidiaries or any of their respective employees to compete affiliates (including Parent and its affiliates after the Acceptance Time) from the development, marketing or distribution of products and services, in any material line of business or with any Person or entity or each case, in any geographic area area;
(ii) each Contract that limits the freedom of the Company or during any period Company Subsidiary to negotiate or, except for provisions requiring notice or consent to assignment by the counterparty thereto, consummate any of time in a manner that is the Transactions;
(iii) any material to partnership, joint venture, strategic alliance, limited liability company agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar material Contract;
(iv) each acquisition or divestiture Contract that contains representations, taken as a wholecovenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by the Company or any Company Subsidiary of future payments in excess of $1,000,000;
(v) each Contract that gives any material Contract entered into Person the right to acquire any assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase Company Products) after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) date hereof with consideration of assets (other more than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person$1,000,000;
(vi) Contracts of the type described in clauses (i) and (ii) of Section 4.14(h);
(vii) other than in the ordinary course of business consistent with past practice, any Contract between to provide Source Code for any Company Product to any third Person, including any Contract to put such Source Code in escrow with a third Person on behalf of a licensee or among contracting party;
(viii) any settlement agreement or similar Contract restricting in any material respect the operations or conduct of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Acceptance Time);
(ix) each Contract not otherwise described in any other subsection of this Section 4.17(a) pursuant to which the Company or any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $5,000,000 in the twelve (12) month period following the date hereof;
(x) any Contract that obligates the Company or any Company Subsidiary to make any capital investment or capital expenditure outside the ordinary course of business and in excess of $1,000,000;
(xi) each Contract that is a Material Customer Agreement, a Material Supplier Agreement or a Material Reseller Agreement;
(xii) each Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its Subsidiariesaffiliates after the Acceptance Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or material assets;
(xiii) each Contract that contains any exclusivity rights or “most favored nations” provisions or minimum use, supply or display requirements that are binding on the Company or its affiliates (including Parent and its affiliates after the Acceptance Time);
(xiv) each non-ordinary course Contract that contains any material indemnification obligations by the Company or any Company Subsidiary;
(xv) each Company Government Contract pursuant to which the Company receives annual revenue in excess of $1,000,000;
(xvi) each Company Lease;
(xvii) each Contract relating to outstanding or potential Indebtedness (or commitments in respect thereof) of the Company or the Company Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $500,000 or relating to any Liens on the assets of the Company or any Company Subsidiary;
(xviii) each Contract involving derivative financial instruments or arrangements (including swaps, caps, floors, futures, forward contracts and option agreements) for which the aggregate exposure (or aggregate value) to the Company and the Company Subsidiaries is reasonably expected to be in excess of $500,000 or with a notional value in excess of $500,000;
(xix) each Contract between the Company or any Company Subsidiary, on the one hand, and any of their respective Affiliates officer, director or affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary, any beneficial owner, directly or indirectly, of its Subsidiariesmore than five percent (5%) of the number or voting power of the shares of Company Common Stock or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) including any Contract between pursuant to which the Company or any of its Subsidiaries and any director Company Subsidiary has an obligation to indemnify such officer, director, affiliate, beneficial owner, associate or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiariesimmediate family member; and
(ixxx) any Contract not otherwise described in any other contracts subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) True and agreementscomplete copies of each Material Contract in effect as of the date hereof have been made available to Parent or publicly filed with the SEC prior to the date hereof. Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Material Contract, whether except as has not had and would not reasonably be expected to have, individually or not made in the ordinary course of businessaggregate, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for To the exception of being filed Company’s Knowledge, as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date hereof, no other party to any Material Contract is in breach of this Agreementor default under the terms of any Material Contract where such breach or default has had or would reasonably be expected to have, except individually or in the aggregate, a Company Material Adverse Effect. Except as has not had and would not have reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is a legalvalid, valid binding and binding enforceable obligation of the Company or its Subsidiaries the Company Subsidiary which is party thereto and, to the Company’s Knowledge, of each other party thereto, and is in full force and effect, subject to the other parties theretoEnforceability Limitations.
(c) True and complete copies of each Company Government Contract Bid that, if accepted, would be a Material Contract of the type specified in Section 4.17(a)(xv) (a “Material Government Bid”) have been made available to Parent prior to the date hereof.
(d) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, (i) each Company Government Contract is binding on the Company or the Company Subsidiary party thereto and is in full force and effect, subject to the Enforceability Limitations, (ii) no Company Government Contract or offer, quotation, bid or proposal to sell products or services made by the Company or any Company Subsidiary to any Governmental Entity or any prime contractor (a “Government Contract Bid”) is the subject of bid or award protest proceedings resulting from the conduct of the Company or any of its Subsidiaries, and (iii) neither the Company nor any Company Subsidiary is in breach of its or default under the terms of any Company Government Contract. The Company and the Company Subsidiaries norare in compliance, and have been in compliance since January 1, 2016, in all material respects with the terms and conditions of each Company Government Contract and Government Contract Bid, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein. Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2016, neither any Governmental Entity nor any prime contractor or subcontractor has notified the Company or any Company Subsidiary in writing that the Company or any Company Subsidiary has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Company Government Contract or Government Contract Bid. Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2016, no costs incurred by the Company or any Company Subsidiary pertaining to any Company Government Contract have been proposed for disallowance or deemed finally disallowed in writing by a Governmental Entity, and no material payment due to the Company or any Company Subsidiary pertaining to any Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off any such payment.
(e) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2016, (i) none of the Company, any Company Subsidiary or any of their respective Principals (as defined in Federal Acquisition Regulation 52.209-5) has been debarred, suspended or excluded, or to the Company’s Knowledge, proposed for debarment, suspension or exclusion, from participation in or the award of Contracts or subcontracts for or with any Governmental Entity or doing business with any Governmental Entity, (ii) none of the Company or any Company Subsidiary has received any request to show cause (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements), (iii) none of the Company or any Company Subsidiary, to the Company’s Knowledge, is the subject of a finding of non-compliance, nonresponsibility or ineligibility for government contracting, (iv) none of the Company or any other party thereto Company Subsidiary is for any reason listed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, (v) neither the Company nor any Company Subsidiary, nor any of their respective directors, officers, employees or Principals (as defined in breach or violation ofFederal Acquisition Regulation 52.209-5), or default under, any Material Contract and no event has occurred or not occurred through nor to the Company’s Knowledge, any consultants or agents of the Company or any Company Subsidiary, is or has been under administrative, civil or criminal investigation, indictment or information by any Governmental Entity with respect to the award or performance of its Subsidiaries’ action or inaction any Company Government Contract, the subject of any actual or, to the Company’s Knowledge, the action threatened in writing, “whistleblower” or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of“qui tam” lawsuit, or default underaudit (other than a routine contract audit) or investigation of the Company or any Company Subsidiary with respect to any Company Government Contract, including any Material Contract alleged material irregularity, misstatement or omission arising thereunder or relating thereto, and (iii) to the Company’s Knowledge, there is no basis for any such investigation, indictment, lawsuit or audit and (vi) neither the Company and its Subsidiaries have not received nor any written claim Company Subsidiary has made any voluntary disclosure (A) to any Governmental Entity with respect to any alleged material irregularity, misstatement, omission, fraud or notice price mischarging, or other violation of defaultLaw, termination arising under or cancellation relating to a Company Government Contract or (B) under the Federal Acquisition Regulation mandatory disclosure or payment provisions to any such Material ContractGovernmental Entity and, to the Company’s Knowledge, there are no facts that would require mandatory disclosure thereunder.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Tableau Software Inc), Agreement and Plan of Merger (Salesforce Com Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits disclosed in the Specified Company SEC Documents, to the extent that it is reasonably apparent that the disclosure in the Specified Company SEC Reports filed prior Documents is responsive to the matters set forth in this Section 3.12(a), as of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
by any contract, arrangement, commitment or understanding (whether written or oral), other than hedging or similar arrangements in the ordinary course of business consistent with past practice, (i) any Contract that would be required which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be filed by performed after the Company pursuant to Item 4 date of the Instructions to Exhibits of Form 20-F under the Exchange Act;
this Agreement, (ii) any Contract involving which materially restrains, limits or impedes the payment or receipt of amounts by the Company Company’s or any of its Subsidiaries’ ability to compete with or conduct any business or any line of business (including (A) geographic limitations on the Company’s or any of its Subsidiaries’ activities or (B) any confidentiality agreement, area of mutual interest or relating to material Indebtedness standstill agreement with any third party (other than or any Indebtedness solely between agent thereof) that contains any exclusivity or standstill provisions that are or will be binding on the Company and Company, any of its Subsidiaries or, after the Effective Time, Parent or any of its Subsidiaries);
; provided that (x) the Company need not disclose in the Company Disclosure Letter information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements prohibit the Company from disclosing the existence or any terms of such agreements to third parties, except that if any such agreements contain any material restrictions, limits or impediments on the Company’s or its Subsidiaries’ ability to compete with or conduct any business or any line of business, such restrictions, limits and impediments shall be disclosed without providing the identity of the parties to the agreements on the Company’s Disclosure Letter, and (y) the Company need not disclose on its Disclosure Letter to this Agreement information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements relate to a potential sale of all or substantially all of the assets or equity securities of the Company (whether by merger or otherwise), except that the Company shall disclose on the Company’s Disclosure Letter the date of each such agreement, (iii) any which is a material joint venture contracts, strategic cooperation, partnership arrangements take-or-pay agreement or other agreements outside the ordinary course similar agreement that entitles purchasers of business involving production to receive delivery of Hydrocarbons without paying therefor, (iv) which contains a sharing put, call or other right of profits, losses, costs acquisition or liabilities by disposition pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests (including licensing or leasehold interests) of any Person or assets that have a market value or purchase price of more than $5,000,000, or, with any third party;
(iv) any Contract respect to calls on production, that limits in any material respect the ability of obligate the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in sell Hydrocarbons at a manner that price which is material to the Company and its Subsidiariesless than market value, taken as a whole;
(v) any material Contract entered into after June 30, 2011 which is a partnership or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material joint venture relating to the Company and its Subsidiaries;
(vii) formation, creation, operation, management or control of any Contract between the Company partnership or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are joint venture material to the Company and its Subsidiaries, taken as a whole, in which the Company, directly or the conduct of their respective businessesindirectly, owns more than a 10% voting or economic interest, or any interest valued at more than $10,000,000 without regard to percentage voting or economic interest, or (vi) which is otherwise material to the absence of which would have Company and its Subsidiaries taken as a Company Material Adverse Effectwhole. Each such Contract contract, arrangement, commitment or understanding of the type described in clauses this Section 3.12(a) (i) through (ix) above and each such Contract that would be a Material Contract but for vi), whether or not disclosed in the exception of being filed as an exhibit to the Specified Company SEC Reports Documents, is referred to herein as a “Company Material Contract”.
” (bfor purposes of clarification, each “material contract” (as such term is defined in Item 601(b)(10) As of Regulation S-K of the SEC) to be performed after the date of this Agreement, except as would whether or not have filed with the SEC or disclosed in the Specified Company SEC Documents, is a Company Material Adverse EffectContract). The Company has previously made available to Parent true, complete and correct copies of each Company Material Contract other than those which the Company is entitled to omit from the Company Disclosure Letter pursuant to the proviso to clause (ii) of the first sentence of this Section 3.12(a).
(i) each Each Company Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties theretoand in full force and effect, (ii) neither the Company nor any and each of its Subsidiaries norhas performed in all respects all obligations required to be performed by it to date under each Company Material Contract, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and (iii) no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction condition exists which constitutes or, to the Company’s Knowledge, the action or inaction of any third party, that with after notice or lapse of time or both both, would constitute constitute, a breach default on the part of the Company or violation of, or default under, any of its Subsidiaries under any such Company Material Contract and (iiiiv) to the Knowledge of the Company’s Knowledge, no other party to such Company Material Contract is in default in any respect thereunder, except in each case for any invalidity, nonperformance, event, condition or default that, individually or in the Company aggregate, has not had, and its Subsidiaries have would not received any written claim or notice of defaultbe reasonably likely to have, termination or cancellation under any such a Material ContractAdverse Effect on the Company.
Appears in 3 contracts
Samples: Merger Agreement (Petrohawk Energy Corp), Agreement and Plan of Merger (Petrohawk Energy Corp), Agreement and Plan of Merger (KCS Energy Inc)
Material Contracts. (ai) Except for this Agreement Sellers have provided to Buyer true and except for Contracts filed as exhibits correct copies of the following agreements (each a “Material Contract”) to which each of the Company SEC Reports filed prior to and its Subsidiaries is a party:
(A) any agreement for the date purchase or sale of this Agreement, as products or for the furnishing or receipt of services (1) which involves more than the sum of $10,000 or (2) in which each of the date hereofCompany or its Subsidiaries has granted “most favored nation” pricing provisions or marketing or distribution rights relating to any services, none products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(B) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(C) any agreement under which each of the Company or its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) any Encumbrance on any of its assets, tangible or intangible (excluding indebtedness and Encumbrances being paid off, terminated or otherwise satisfied in connection with the Closing);
(D) any agreement for the disposition of any significant portion of the assets or business of each of the Company or its Subsidiaries (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(E) any agreement concerning confidentiality or non-solicitation;
(F) any employment agreement, consulting agreement, severance agreement (or agreement that includes provisions for the payment of severance) or retention agreement;
(G) any agreement involving any current director, manager, officer, shareholder or member of each of the Company or its Subsidiaries;
(H) any lease or agreement under which each of the Company or its Subsidiaries is the lessee of, or holds or operates, any personal property owned by any other party, for which the annual rental exceeds $15,000;
(I) any agreement that prohibits each of the Company or its Subsidiaries from freely engaging in business anywhere in the world;
(J) any distributor, sales representative, franchise or similar agreement to which each of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto is bound; and
(K) any other agreement (or group of related agreements) either (A) involving more than $50,000 or (B) not entered into in the Ordinary Course of Business and involving more than $10,000.
(ii) Each of the Company or its Subsidiaries has made available to Buyer a complete and accurate copy of each Material Contract (as amended to date). With respect to each Material Contract, and subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity: (i) the Material Contract is legal, valid, binding and enforceable and in full force and effect against each of the Company or its Subsidiaries, to the Company’s KnowledgeKnowledge of any Seller or each of the Company or its Subsidiaries, the against each other parties thereto, party thereto; and (ii) neither the Material Contract will continue to be legal, valid, binding and enforceable and in full force and effect against each of the Company nor any or its Subsidiaries and against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing. Neither each of the Company or its Subsidiaries nor, to the Company’s KnowledgeKnowledge of any Seller or each of the Company or its Subsidiaries, any other party thereto party, is in breach or violation of, or default under, any such Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction occurred, is pending or, to the Company’s Knowledge, the action or inaction Knowledge of any third partySeller or each of the Company or its Subsidiaries, that is threatened, which, after the giving of notice, with notice or lapse of time time, or both otherwise, would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, by each of the Company and or its Subsidiaries have not received or any written claim or notice of default, termination or cancellation other party under any such Material Contract.
(iii) Each of the Company or its Subsidiaries is not party to any oral contract, agreement or other arrangement that, if reduced to written form, would be required to provide under the terms of Section 3(y).
Appears in 3 contracts
Samples: Share Purchase Agreement (Meiwu Technology Co LTD), Share Purchase Agreement (Meiwu Technology Co LTD), Share Purchase Agreement (Meiwu Technology Co LTD)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 3.16(a) of the Company SEC Reports filed prior to Seller Disclosure Letter lists each Contract in the date of this Agreement, following categories that is in force as of the date hereof, none hereof and which either constitutes a Transferred Contract or is a Contract to which Seller or any of the Company or its Subsidiaries Affiliates (including any Acquired Company) is a party or by which any of their assets are bound and, in the case of Seller and any of its Affiliates other than the Acquired Companies, that relates to or bound by:the FSS Business (in each case, other than Covered Insurance Policies) (such Contracts “Material Contracts”):
(i) any Contract that would be required involving aggregate payments by Seller or its Affiliates with respect to be filed the FSS Business to any Person (other than an Insurance Producer) in excess of $[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020, or the delivery by Seller or its Affiliates with respect to the Company pursuant to Item 4 FSS Business of goods or services with a fair market value in excess of $[Redacted] during the Instructions to Exhibits of Form 20-F under the Exchange Actconsecutive twelve (12)-month period ended December 31, 2020;
(ii) any Contract Intercompany Agreement involving the payment aggregate payments by Seller or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness Affiliates (other than any Indebtedness solely between Acquired Company) on the Company and one hand, or any Acquired Company, on the other hand, in excess of its Subsidiaries)$[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020;
(iii) any material joint venture contractsContract that is a mortgage, strategic cooperationindenture, partnership arrangements loan or credit agreement, security agreement or other agreements outside agreement or instrument relating to the ordinary course borrowing of business money or extension of credit or the direct or indirect guarantee of any obligation for borrowed money of any Person or any other Liability in respect of indebtedness for borrowed money of any Person, in each case, involving a sharing of profits, losses, costs or liabilities by the Liabilities with respect to any Acquired Company or any the FSS Business in excess of its Subsidiaries with any third party$[Redacted];
(iv) any Contract concerning the establishment or operation of a partnership, strategic alliance, joint venture, or limited liability company or other similar agreement or arrangement in respect of the business of any Acquired Company or the FSS Business;
(v) any Contract that limits in any material respect limits, or purports to limit, the ability of Seller or its applicable Affiliates (or, after consummation of the Company transactions contemplated hereby, Buyer or any of its Subsidiaries Affiliates) to engage in any business with any Person or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time time, to solicit customers in a manner way that is would reasonably be expected to be material to any Acquired Company or the FSS Business or to manufacture, market, sell or administer any product, in each case, except for Contracts that limit the ability of an Acquired Company and its Subsidiariesto solicit the employment of, taken as a whole;
(v) any material Contract entered into after June 30or hire individuals employed by, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another PersonPersons;
(vi) any Contract between that obligates Seller or among the Company its Affiliates to purchase or otherwise obtain any of its Subsidiaries, on the one hand, and product or service exclusively from a single party or sell any of their respective Affiliates (other than the Company product or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material service exclusively to the Company and its Subsidiariesa single party;
(vii) any Contract between the creating or granting any Encumbrance (other than Permitted Encumbrances) on any assets, properties or rights of an Acquired Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Acton a Purchased Asset;
(viii) any Contract that provides for the license to a Third Party of any material Business IP, or for the license to Seller or one of its Affiliates (primarily for the benefit of the FSS Business) of any material Intellectual Property (other than Contracts granting Company Options“shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases) giving the other party the right to terminate such Contract as a result under which Seller or any of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material its Affiliates made payments with respect to the Company and its Subsidiaries or FSS Business in an amount in excess of $[Redacted] during the consecutive twelve (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract12)-month period ended December 31, taken as whole, that is material to the Company and its Subsidiaries; and2020;
(ix) any other contracts and agreements, whether Contract under which (A) any Person has directly or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, indirectly guaranteed any Liabilities or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As obligations of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction Acquired Companies or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 3 contracts
Samples: Master Transaction Agreement, Master Transaction Agreement, Master Transaction Agreement
Material Contracts. (ai) Except for this Agreement and except for Contracts filed reflected as exhibits to the Company its SEC Reports filed prior to the date of this Agreement, as of the date hereofof this Agreement, none neither it nor any of the Company its Subsidiaries, nor any of their respective assets, businesses, or its Subsidiaries operations, is a party to to, or is bound or affected by:
, or receives benefits under, (iA) any Contract relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than Contracts pertaining to fully-secured repurchase agreements, and trade payables, and Contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (B) any Contract containing covenants that limit the ability of it or any of its Subsidiaries to compete in any line of business or with any Person, or that involve any restriction of the geographic area in which, or method by which, it or any of its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority) or which requires referrals of business or requires it or any of its Affiliates to make available investment opportunities to any Person on a priority, equal or exclusive basis, (C) any Contract with respect to the employment of any directors or executive officers, or with any consultants that are natural Persons involving the payment of $10,000,000 or more per annum, (D) any Contract that could reasonably be expected to prohibit, delay or materially impair the consummation of any of the transactions contemplated by this Agreement, (E) any Contract that involves expenditures or receipts by it or any of its Subsidiaries in excess of $25,000,000 per year not entered into in the ordinary course of business consistent with past practice, (F) any Contract with any Governmental Authority (other than routine or customary Contracts with any self-regulatory body) or (G) any other Contract or amendment thereto that would be required to be filed by the Company pursuant as an exhibit to Item 4 any SEC Report (as described in Items 601(b) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Act;0000 Xxx) that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement. With respect to each of its Contracts that are (A) reflected as an exhibit to any SEC Report, (B) would be required under Items 601(b)(4) and 601(b)(10) of Regulation S-K under the 1933 Act to be filed as an exhibit to any of its SEC Reports, or (C) that is disclosed in its Disclosure Letter: (w) each such Contract is in full force and effect; (x) neither it nor any of its Subsidiaries is in Default thereunder; (y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such Contract; and (z) no other party to any such Contract is, to its knowledge, in Default thereunder in any material respect.
(ii) All interest rate swaps, caps, floors, option agreements, futures and forward contracts, and other similar risk management arrangements, whether entered into for its own account or for the account of one or more of its Subsidiaries or their respective customers, were entered into (A) in accordance with prudent business practices and all applicable Laws and (B) with counterparties believed to be financially responsible, and each of them is enforceable against it or its Subsidiaries and, to its knowledge, the applicable counterparties thereto, in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors’ rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any Contract involving the payment or receipt of amounts by the Company or proceeding may be brought), and is in full force and effect. Neither it nor any of its Subsidiaries, or relating nor to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledgeknowledge, any other party thereto thereto, is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or Default of any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation obligations under any such agreement or arrangement. Its Financial Statements disclose the value of such agreements and arrangements on a xxxx-to-market basis in accordance with GAAP (including but not limited to Financial Accounting Statement 133) and, since September 30, 2006, there has not been a change in such value that, individually or in the aggregate, has resulted in a Material ContractAdverse Effect on it.
Appears in 3 contracts
Samples: Merger Agreement (Mellon Financial Corp), Merger Agreement (Bank of New York Co Inc), Merger Agreement (Bank of New York Mellon CORP)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to As of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) (other than any Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange ActBenefit Plan);
(ii) any Contract involving with the payment or receipt 50 largest customers of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, based on budgeted receipts for the fiscal year ended December 31, 2018 (the “Major Customers”) that expressly imposes any material restriction on the right or ability of the Company or any of its Subsidiaries to compete with any other Person or solicit any client or customer and, in each case, that following the Closing will materially restrict the ability of Parent or its Subsidiaries (other than the Surviving Company and its Subsidiaries) to so compete or solicit;
(iii) any Contract with a Major Customer that expressly obligates the Company or its Subsidiaries (or following the Closing, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants;
(iv) any Company employment agreement with any current executive officer or any current member of their respective businessesthe Company Board;
(v) any Contract entered into on or after January 1, 2015 that is a settlement agreement or includes a settlement agreement entered into in connection with a Proceeding and that materially restricts the operation of the business of the Company or any of its Subsidiaries;
(vi) any Contract relating to Indebtedness (other than intercompany Indebtedness owed by the Company or any wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the absence Company) of which would have the Company or any of its Subsidiaries having an outstanding principal amount in excess of $1,000,000;
(vii) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(viii) any Contract with the twenty largest vendors of the Company and its Subsidiaries, taken as a whole, with respect to the fiscal year ended December 31, 2017 and any Contract with the twenty largest customers of the Company Material Adverse Effect. Each and its Subsidiaries, taken as a whole, based on budgeted receipts for the fiscal year ended December 31, 2018 (the “Top Customers”), in each case based on amounts paid to such vendor or received from such customer during such period;
(ix) any Contract entered into on or after January 1, 2015 that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of sale in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person, and with any outstanding obligations as of the date of this Agreement, in each case with a value in excess of $1,000,000;
(x) any material joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract described solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries; and
(xi) any Contract with an affiliate or other Person that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act. All contracts of the types referred to in clauses (i) through (ixxi) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is are referred to herein as a “Company Material ContractContracts.”.
(b) As of Neither the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation nor any Subsidiary of the Company is in material breach of or its Subsidiaries party thereto default in any respect under the terms of any Company Material Contract and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any knowledge of its Subsidiaries nor, to the Company’s Knowledge, any as of the date hereof, no other party thereto to any Company Material Contract is in material breach or violation of, of or default underin any respect under the terms of any Company Material Contract, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledgeknowledge, prior to the date hereof through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a material breach of or violation ofdefault or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or default underresult in the loss of any material benefit under the terms of any Company Material Contract. To the knowledge of the Company, any each Company Material Contract (i) is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and of each other party thereto, and (iiiii) is in full force and effect, subject to the Enforceability Exceptions, in each case, except as would not be material to the Company and its Subsidiaries, taken as a whole. There are no disputes pending or, to the Company’s Knowledgeknowledge, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Company Material Contract to terminate for default, convenience or otherwise, any Company Material Contract, in each case, except as would not be material to the Company and its Subsidiaries have not received any written claim or notice of defaultSubsidiaries, termination or cancellation under any such Material Contracttaken as a whole.
Appears in 3 contracts
Samples: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp), Merger Agreement (Convergys Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to set forth in Section 3.20 of the Company SEC Reports filed prior to the date of this AgreementDisclosure Schedule, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
by any Contract that (i) any Contract that would be required to be filed is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
SEC), (ii) any Contract involving would, after giving effect to the payment Merger, materially limit or receipt of amounts by restrict the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company Surviving Corporation or any of its Subsidiaries with or any third party;
(iv) any Contract that limits successor thereto, from engaging or competing in any material line of business or in any geographic area that it currently engages in or that contains exclusivity or non-solicitation provisions with respect to customers, (iii) limits or otherwise restricts the ability of the Company or any of its Subsidiaries to pay dividends or any make distributions to its shareholders or (iv) provides for the operation or management of their respective employees to compete in any material line operating assets of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or its Subsidiaries by any of its Subsidiaries, on the one hand, and any of their respective Affiliates (person other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any . Each Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of type described in this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreementsSection 3.20, whether or not made in the ordinary course set forth on Section 3.20 of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports Disclosure Schedule is referred to herein as a “Company Material Contract”.
(b) As of the date of this Agreement, except as would not have a ” Each Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries Subsidiary party thereto enforceable against the Company or its Subsidiary party thereto and, to the knowledge of the Company’s Knowledge, the each other parties party thereto, in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) neither equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) and, is in full force and effect, and each of the Company nor and each of its Subsidiaries which is a party thereto has performed in all material respects all obligations required to be performed by it to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation has knowledge of, or has received written notice of, any violation of or default under (or any condition which with the passage of time or the giving of written notice would cause such a violation of or default under, ) any Company Material Contract and no event has occurred to which it is a party or not occurred through the Company’s by which it or any of its Subsidiaries’ action properties or inaction assets is bound, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or, after giving effect to the Company’s KnowledgeMerger, the action a Parent Material Adverse Effect. “Contract” or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received “contract” means any written claim agreement, undertaking, contract, commitment, lease, license, permit, franchise, concession, deed of trust, contract, note, bond, mortgage, indenture, arrangement or notice of default, termination other instrument or cancellation under any such Material Contractobligation.
Appears in 3 contracts
Samples: Merger Agreement (DPL Inc), Merger Agreement (DPL Inc), Merger Agreement (Aes Corp)
Material Contracts. (a) Except for this Agreement Schedule 4.14 lists (without duplication) each of the following contracts and other agreements to which a Conveyed Entity or any Subsidiary thereof is a party or by or to which a Conveyed Entity or any Subsidiary thereof or any of their respective assets or properties is bound or subject as of the date hereof, except for Contracts filed as exhibits (i) contracts and other agreements the only parties to which are the Conveyed Entities and their Subsidiaries and (ii) contracts and other agreements which are terminable on sixty (60) days prior notice without material penalty (such contracts and agreements being "Material Contracts"):
(i) agreements between a Conveyed Entity or Subsidiaries thereof and a Franchisee, or other agreements relating to the Company SEC Reports filed prior franchise business operations providing for payments to or by the Conveyed Entities and their Subsidiaries reasonably expected to exceed $1,500,000 per agreement per calendar year;
(ii) advertising, market research and other marketing agreements providing for payments by any Conveyed Entity or its Subsidiaries of more than $1,500,000 per agreement per calendar year;
(iii) employment, severance, consulting or other agreements with any current stockholder, director, officer or employee which provide for the continuing obligation on the part of the Conveyed Entities and/or their Subsidiaries to pay compensation in excess of $100,000 per calendar year.
(iv) agreements outside the ordinary course of business relating to (x) the sale or lease (as lessor) by a Conveyed Entity or any Subsidiary thereof of any assets or properties in excess of $1,500,000 per agreement per calendar year, (y) the acquisition or lease (as lessee) by the Conveyed Entity or any Subsidiary thereof of any assets or properties in excess of $1,500,000 per agreement per calendar year or (z) any airport concession;
(v) agreements restricting the ability of the Conveyed Entities or the Subsidiaries thereof to incur Indebtedness;
(vi) agreements relating to any guarantee of Indebtedness by the Conveyed Entities or the Subsidiaries thereof (other than indemnities made in the ordinary course of business which are not material to the date Conveyed Entities and their Subsidiaries taken as a whole);
(vii) agreements relating to the making of this Agreementany loan or advance by a Conveyed Entity or any Subsidiary thereof, other than (x) intercompany loans among the Conveyed Entities or Subsidiaries thereof and (y) those made in the ordinary course of business consistent with past practice;
(viii) agreements relating to Indebtedness, factoring arrangements, sale and leaseback transactions and other similar financing transactions providing for payments of more than $1,500,000 per agreement;
(ix) agreements providing for the indemnification by a Conveyed Entity or Subsidiaries thereof of any person, except those entered into in the ordinary course of business and those which are not material to the Conveyed Entities and their Subsidiaries taken as a whole;
(x) agreements with any Governmental Authority except those entered into in the ordinary course of business and those which are not material to the Conveyed Entities and their Subsidiaries taken as a whole;
(xi) material joint venture, partnership or similar documents or agreements;
(xii) agreements that limit or purport to limit the ability of a Conveyed Entity or Subsidiary thereof to compete with any Person in the Car Rental Business; and
(xiii) other agreements, contracts or commitments not made in the ordinary course of business which are material to the Conveyed Entities and their Subsidiaries taken as a whole.
(b) To the Knowledge of the Shareholders and the Conveyed Entities, except as set forth on Schedule 4.14, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation on and enforceable against the respective Conveyed Entities or Subsidiaries thereof that are parties thereto. Except as set forth on Schedule 4.14, the consummation of the Company transactions contemplated by this Agreement, will not result in a material breach of any Material Contract. No Conveyed Entity or its Subsidiaries party thereto and, to Subsidiary thereof is (or with the Company’s Knowledge, the other parties thereto, (iigiving of notice or lapse of time would be) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in material breach or violation of, or material default under, any Material Contract and no event Contract. Neither the Shareholders nor any of the Conveyed Entities or their Subsidiaries has occurred or not occurred received any written notice from June 30, 1996 through the Company’s or date hereof that any Material Contract is not enforceable against any party thereto, that any Material Contract has been terminated before the expiration of its Subsidiaries’ action term or inaction or, that any party to a Material Contract intends to terminate such Material Contract prior to the Company’s Knowledgetermination date specified therein, the action or inaction of that any third party, that with notice or lapse of time or both would constitute a other party is in material breach or violation of, or material default under, any Material Contract Contract. There have been delivered or made available to Republic and (iii) to the Company’s Knowledge, the Company Republic Subsidiaries true and its Subsidiaries have not received any written claim or notice complete copies of default, termination or cancellation under any such all Material ContractContracts.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Republic Industries Inc), Agreement and Plan of Reorganization (Guy Salmon Usa LTD), Agreement and Plan of Reorganization (Republic Industries Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as Section 3.15(a) of the date hereof, none Disclosure Schedule lists each of the Company or its Subsidiaries is a party to or bound by:following contracts and agreements of the Pershing Companies (such contracts and agreements being "Material Contracts"):
(i) any Contract that would be required all contracts and agreements relating to be filed by the Company pursuant to Item 4 Indebtedness of the Instructions Pershing Companies to Exhibits a third party that individually are in excess of Form 20-F under the Exchange Act$2,000,000;
(ii) all contracts and agreements with any Contract involving the payment or receipt of amounts by the Company or Governmental Authority to which any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)Pershing Companies is a party;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements all contracts and agreements that limit or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect purport to limit the ability of the Company or any of its Subsidiaries or any of their respective employees the Pershing Companies to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to time;
(iv) all contracts and agreements between or among any of the Company Pershing Companies and its Subsidiaries, taken as a wholethe Seller or any Affiliate of the Seller;
(v) any material Contract all contracts and agreements, other than option and margin agreements entered into after June 30in the ordinary course of business, 2011 to which any of the Pershing Companies is a party requiring the payment of money in excess of $1,000,000 during the 12 month period ending on the date hereof or not yet consummatedthat would, for on an annualized basis, have required such payment during such period; provided, however, that with respect to those contracts and agreements the acquisition or dispositionterms of which prohibit the Seller from disclosing their contents, directly or indirectly (including by merger, consolidation, combination or amalgamation) the Seller shall only provide the Purchaser with a list of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personsuch contracts and agreements;
(vi) any Contract between all Company IP Licenses, other than shrink-wrap or among click-through licenses of computer software, contemplating an exchange of value in excess of $1,000,000 during the Company or any of its Subsidiaries, 12 month period ending on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiariesdate hereof;
(vii) all contracts and agreements granting an Encumbrance, other than Permitted Encumbrances, upon any Contract between the Company property or asset of any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange ActPershing Company;
(viii) all contracts and agreements obligating any Contract (other than Contracts granting Pershing Company Options) giving the other party the right to terminate such Contract pay to any Person any money as a result of the execution and delivery of this Agreement or the consummation of the Merger where transactions contemplated herein;
(Aix) such Contract requires all contracts and agreements providing for the acquisition or disposition after the date of this Agreement of any paymentAssets contemplating an exchange of value in excess of $500,000;
(x) all contracts and agreements providing for a power of attorney on behalf of any Pershing Company other than qualified service representative agreements, taken as whole, that is material to the Company stock powers of attorney and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiariessimilar agreements; and
(ixxi) any other contracts all leases and agreements, whether or not made subleases in the ordinary course respect of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”Leased Real Property.
(b) As Each Material Contract: (i) is valid and binding on each of the date Pershing Companies which is a party thereto, and, to the knowledge of the Seller, the counterparties thereto, and is in full force and effect and (ii) upon consummation of the transactions contemplated by this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation to the extent that any consents set forth in Section 3.08 of the Company Disclosure Schedule are not obtained, shall continue in full force and effect without penalty or its Subsidiaries party thereto and, to other adverse consequence. None of the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto Pershing Companies is in breach or violation of, or default under, any Material Contract Contract, except where such breach or default would not, individually or in the aggregate, have a Material Adverse Effect, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledgeknowledge of Seller, none of the action other parties thereto is in material default or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractmaterial breach.
Appears in 3 contracts
Samples: Transaction Agreement, Transaction Agreement (Credit Suisse Group), Transaction Agreement (Credit Suisse First Boston Usa Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereofof this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound byby any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding (i) any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) that is a lease, easement or other instrument constituting the chain of title to the properties and assets onshore in the United States owned or held by the Company or any of its Subsidiaries and (ii) any Company Benefit Plan) (each, a “Contract”) that:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) includes any contingent payment obligations or similar payment obligations (including any “earn-out” obligations) that would require payments to any person (other than the Company, a wholly-owned Subsidiary of the Company, Parent, or any wholly-owned Subsidiary of the Parent) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations would reasonably be expected to result in future payments by the Company or its Subsidiaries that exceed, individually or in the aggregate, $100 million;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries, and would run in favor of any Person (other than the Company, a wholly-owned Subsidiary of the Company, Parent, or any wholly-owned Subsidiary of Parent);
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract, or other Contract involving representing, or any guarantee of, indebtedness for borrowed money of the payment Company or receipt any Subsidiary of amounts the Company in excess of $100 million (excluding any government-mandated or state-wide bonds or guarantees) or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million (excluding any government-mandated or state-wide bonds or guarantees);
(v) grants (A) rights of first refusal, rights of first negotiation or similar rights, or (B) puts, calls or similar rights, to any person (other than the Company or a wholly-owned Subsidiary of the Company) with respect to any asset that is material to the Company; provided that, in each case of (A) and (B), with respect to any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) related to any properties or assets owned or held by the Company or any of its Subsidiaries, or relating only to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)extent that such rights would be triggered by the Transactions;
(iiivi) was entered into to settle any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries with any third partySubsidiaries;
(ivvii) any Contract that limits in any material respect or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a partnership, limited liability company, joint venture or other similar agreement or arrangement, in each case that is material to the Company, relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest capital in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of Hydrocarbons and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of their respective employees to compete its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) is a material line joint operating agreement (JOA) in each of business or with any Person or entity or the geographic regions set forth in any geographic area or during any period Section 3.21(a)(x) of time in a manner that is the Company Disclosure Schedules (provided that, for these purposes, “material” shall mean material to the Company and its Subsidiaries, taken as a wholeSubsidiaries with respect to their operations in such geographic region);
(vxi) any material is a Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamationrequired to be set forth on Section 3.21(a)(xi) of assets the Company Disclosure Schedules (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personsuch Contracts, the “Specified Contracts”);
(vixii) is a Contract providing for indemnification of any officer or director of (A) the Company or (B) any Contract between of its Significant Subsidiaries (excluding the MLP and its Subsidiaries); or
(xiii) is any confidentiality agreement or among standstill agreement the Company has entered into with any third party (or any agent thereof) that is in effect on the date of this Agreement containing any exclusivity or standstill provisions that are or will be binding on the Company, any of its Subsidiaries or, after the Effective Time, Parent or any of its Subsidiaries, including, after the Effective Time, the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;.
(viib) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ixxii) and not (xiii) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As ” Each Material Contract is a valid and binding obligation of the date Company and its Subsidiaries as applicable and, to the knowledge of this Agreementthe Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the knowledge of the Company’s Knowledge, any other party thereto to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract Contract, and no event has occurred that, with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute such a breach breach, violation or violation ofdefault, except for breaches, violations or default underdefaults that would not, any individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract and (iii) has previously been made available to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractParent.
Appears in 3 contracts
Samples: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date set forth in Section 4.17 of this AgreementParent Disclosure Schedule, as of the date hereof, none neither Parent nor any of the Company or its Subsidiaries is a party to or bound by:
by any Contract that (i) any Contract that would be required to be filed is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
SEC), (ii) any Contract involving would, after giving effect to the payment Merger, limit or receipt of amounts by restrict the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company Surviving Corporation or any of its Subsidiaries or any of their respective employees to compete successor thereto, from engaging or competing in any material line of business or with any Person or entity or in any geographic area that it currently engages in or during any period that contains exclusivity or non-solicitation provisions with respect to customers, (iii) limits or otherwise restricts the ability of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company Parent or any of its Subsidiaries and to pay dividends or make distributions to its stockholders or (iv) provides for the operation or management of any director operating assets of Parent or executive officer its Subsidiaries by any person other than Parent or its Subsidiaries. Each Contract of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of type described in this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreementsSection 4.17, whether or not made in set forth on Section 4.17 of the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports Parent Disclosure Schedule is referred to herein as a “Parent Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each ” Each Parent Material Contract is a legal, valid and binding obligation of the Company Parent or its Subsidiaries Subsidiary party thereto enforceable against Parent or its Subsidiary party thereto and, to the Company’s Knowledgeknowledge of Parent, the each other parties party thereto, in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) neither equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company nor discretion of the court before which any proceeding therefor may be brought) and, is in full force and effect, and each of Parent and each of its Subsidiaries which is a party thereto has performed in all material respects all obligations required to be performed by it to the date hereof under each Parent Material Contract and, to the knowledge of Parent, each other party to each Parent Material Contract has performed in all material respects all obligations required to be performed by it under such Parent Material Contract, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. None of Parent or any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation has knowledge of, or has received written notice of, any violation of or default under (or any condition which with the passage of time or the giving of written notice would cause such a violation of or default under, ) any Parent Material Contract and no event has occurred to which it is a party or not occurred through the Company’s by which it or any of its Subsidiaries’ action properties or inaction assets is bound, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect or, after giving effect to the Company’s KnowledgeMerger, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Parent Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractAdverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Vertro, Inc.), Merger Agreement (Inuvo, Inc.), Merger Agreement (Vertro, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to otherwise set forth in the Company SEC Coulxxx XXX Reports filed prior to the date of this Agreement, as neither Coulxxx xxx any of the date hereof, none of the Company or its Subsidiaries is a party to or is bound by:
(i) by any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken following as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement:
(a) any employment or consulting agreement, contract or commitment with any employee or member of the Coulxxx Xxxrd of Directors, other than those that are terminable by Coulxxx xx any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation, except as would not have a Company Material Adverse Effectto the extent general principles of wrongful termination law may limit Coulxxx'x xx any of its Subsidiaries' ability to terminate employees at will;
(b) any agreement or plan, (i) each Material Contract is a legalincluding any stock option plan, valid and binding obligation stock appreciation right plan or stock purchase plan, any of the Company benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty with or for the benefit of any officer or director of Coulxxx;
(d) any agreement, contract or commitment that has or could reasonably be expected to have the effect of prohibiting or materially impairing any current or future business practice of Coulxxx xx any Subsidiary of Coulxxx, xxy acquisition of property by Coulxxx xx any Subsidiary of Coulxxx xx the overall conduct of business by Coulxxx xx any Subsidiary of Coulxxx xx currently conducted or as proposed to be conducted by Coulxxx xx by any Subsidiary, or under which Coulxxx xx any Subsidiary of Coulxxx xx restricted from selling, licensing or otherwise distributing any of its products to any class of customers, in any geographic area, during any period of time or in any segment of the market;
(e) any agreement, contract or commitment providing for the disposition or acquisition (by license or otherwise) by Coulxxx xx any of its Subsidiaries after the date of this Agreement of any assets not in the ordinary course of business or pursuant to which Coulxxx xxx any ownership interest in any corporation, partnership, joint venture or other business enterprise other than its Subsidiaries;
(f) any joint marketing or development agreement under which Coulxxx xx any of its Subsidiaries have continuing obligations to jointly market any product, technology or service and that may not be canceled without material penalty upon ninety (90) days' or less notice, or any agreement pursuant to which Coulxxx xx any of its Subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned by Coulxxx xx any of its Subsidiaries and that may not be canceled without material penalty upon ninety (90) days' or less notice;
(g) any agreement, contract or commitment to license any third party thereto andto manufacture or reproduce any Coulxxx xx Subsidiary product, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor service or technology; or Neither Coulxxx xxx any of its Subsidiaries nor, to the Company’s Knowledge, any knowledge of Coulxxx xxx other party thereto to a Coulxxx Xxxtract (as defined below) is in breach material breach, violation or default under, and neither Coulxxx xxx any of its Subsidiaries has received notice that it is in material breach, violation of, or default under, any Material Contract and no event has occurred of the material terms or not occurred through conditions of any of the Company’s agreements, contracts or commitments to which Coulxxx xx any of its Subsidiaries’ action Subsidiaries is a party or inaction orby which it is bound that are required to be disclosed in the Coulxxx Xxxclosure Schedule pursuant to clauses (a) through (h) above or pursuant to Section 2.12 (any such agreement, contract or commitment, a "Coulxxx Xxxtract") in such a manner as would permit any other party to the Company’s Knowledge, the action cancel or inaction of terminate any third party, that with notice or lapse of time or both would constitute a breach or violation ofsuch Coulxxx Xxxtract, or default under, would reasonably be expected to entitle any Material Contract and (iii) other party to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim obtain material damages or notice of default, termination or cancellation under any such Material Contractother material remedies.
Appears in 3 contracts
Samples: Merger Agreement (Corixa Corp), Merger Agreement (Coulter Pharmaceuticals Inc), Merger Agreement (Corixa Corp)
Material Contracts. (a) Except for this Agreement Agreement, the Confidentiality Agreement, and except for the Contracts filed as exhibits to the publicly available Company SEC Reports filed prior to the date of this AgreementReports, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound byby any Contract:
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Securities Act;
(ii) pursuant to which the Company or any Subsidiary of the Company has any material continuing “earn-out” or other contingent payment obligations arising in connection with the acquisition or disposition by the Company of any business;
(iii) containing any standstill or similar provision remaining in effect pursuant to which the Company or any Subsidiary of the Company has agreed not to acquire securities or material assets of another Person;
(iv) that (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Significant Subsidiaries or (C) grants “most favored nation” status that, following the Merger, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(v) that (A) is an indenture, loan or credit Contract, loan note, mortgage Contract, letter of credit or other Contract involving representing, or any guarantee of, indebtedness of the payment Company or receipt any Subsidiary of amounts the Company or (B) is a guarantee by the Company or any Subsidiary of the Company of the indebtedness of any Person other than the Company or a wholly owned Subsidiary of the Company;
(vi) that grants with respect to any asset that is material to the Company or any of its Subsidiaries (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any Person (other than the Company or a wholly owned Subsidiary of the Company);
(vii) that was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiviii) any material joint venture contracts, strategic cooperation, partnership arrangements limiting or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect restricting the ability of the Company or any of its Subsidiaries to declare or any pay dividends or make distributions in respect of their respective employees to compete in any material line of business capital stock, partner interests, membership interests or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeother equity interests;
(vix) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditureswhich (A) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and grants to any director third party any license, release, covenant not to xxx or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required similar right with respect to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries Intellectual Property or (B) the value Company or any of its Subsidiaries receives a license, release, covenant not to xxx or similar right with respect to any material Intellectual Property owned by a third party (other than generally commercially available software in object code form);
(x) that is a partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 10% or more, other than with respect to any wholly owned Subsidiary of the outstanding receivables due Company;
(xi) that relates to the acquisition or disposition of any business or assets or the sale or supply of any services pursuant to which the Company or any of its Subsidiaries has any liability in excess of $20,000,000 individually or $50,000,000 in the aggregate;
(xii) that requires or is expected to require in the next year aggregate annual payments by or to the Company and or any of its Subsidiaries under such Contract, taken as whole, that is material in excess of $20,000,000; or
(xiii) to which the Company and or any of its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as Subsidiaries is a wholeparty, or by which any of them are bound, the conduct of their respective businesses, or the absence ultimate contracting party of which would have is a Company Material Adverse EffectGovernmental Entity (including any subcontract with a prime contractor or other subcontractor who is a party to any such contract). Each such Contract described in clauses (i) through (ixxiii) above is referred to herein as a “Company Material Contract.” Each Company Material Contract (and each such Contract that would be a Company Material Contract but for the exception of being having been filed as an exhibit to the a publicly available Company SEC Reports Report) is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of on the Company or and its Subsidiaries party thereto as applicable and, to the Knowledge of the Company’s Knowledge, the each other parties party thereto, (ii) and is in full force and effect, and neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the Knowledge of the Company’s Knowledge, any other party thereto to a Company Material Contract is in breach or violation of any provision of, or in default under, any Company Material Contract Contract, and no event has occurred that, with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute such a breach breach, violation or violation ofdefault, except for breaches, violations or default underdefaults that would not, any individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. A true, complete and accurate copy of each Company Material Contract and (iii) as of the date of this Agreement has previously been made available to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractParent.
Appears in 3 contracts
Samples: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp), Merger Agreement (Cleveland-Cliffs Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to set forth in the Company SEC Reports filed prior to BDC Disclosure Schedule, as of the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or neither BDC nor any of its Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (i) any contract relating to material Indebtedness (other than any Indebtedness solely between the Company and any borrowing of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities money by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company BDC or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including guarantee by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company BDC or any of its Subsidiaries and of any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract such obligation (other than Contracts granting Company Options) giving the other party the right contracts pertaining to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and fully-secured repurchase agreements, whether and trade payables, and contracts relating to borrowings or not guarantees made in the ordinary course of business), which (ii) any contract containing covenants that limit the ability of BDC or any of its Subsidiaries to compete in any line of business or with any Person, or to hire or engage the services of any Person, or that involve any restriction of the geographic area in which, or method by which, BDC or any of its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority) (as each are material hereinafter defined), or any contract that requires it or any of its Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the Company and subject matter of such contract, (iii) any contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to BDC or any of its Subsidiaries, taken as a whole(iv) any lease of real or personal property providing for annual lease payments by or to BDC or its Subsidiaries in excess of $25,000 per annum other than financing leases entered into in the ordinary course of business in which BDC or any of its Subsidiaries is the lessor, or (v) any contract that involves expenditures or receipts of BDC or any of its Subsidiaries in excess of $25,000 per year not entered into in the conduct ordinary course of their respective businesses, or business consistent with past practice. The contracts of the absence of which would have a Company Material Adverse Effect. Each such Contract type described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed preceding sentence, whether or not in effect as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as shall be deemed “Material Contracts” hereunder. With respect to each of BDC’s Material Contracts that is disclosed in the BDC Disclosure Schedule, or would not have a Company Material Adverse Effect, be required to be so disclosed if in effect on the date of this Agreement: (iA) each such Material Contract is a legal, valid in full force and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, effect; (iiB) neither the Company BDC nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach material default thereunder with respect to each Material Contract, as such term or violation of, or default under, any concept is defined in each such Material Contract and no event has occurred or not occurred through the Company’s or Contract; (C) neither BDC nor any of its Subsidiaries’ action Subsidiaries has repudiated or inaction or, to the Company’s Knowledge, the action or inaction waived any material provision of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract; and (D) no other party to any such Material Contract is, to BDC’s knowledge, in material default in any material respect. True copies of all Material Contracts, including all amendments and supplements thereto, are attached to the BDC Disclosure Schedule.
(b) Neither BDC nor any of its Subsidiaries have entered into any interest rate swaps, caps, floors, option agreements, futures and forward contracts, or other similar risk management arrangements, whether entered into for BDC’s own account or for the account of one or more of its Subsidiaries or their respective customers.
Appears in 3 contracts
Samples: Merger Agreement (Merchants Bancorp), Merger Agreement (Merchants Bancorp), Merger Agreement (Merchants Bancorp)
Material Contracts. (a) Except for this Agreement Agreement, ETP’s Benefit Plans and except for Contracts agreements filed as exhibits to the Company ETP SEC Reports filed prior to Documents, as of the date of this Agreement, as neither ETP nor any of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving that (A) expressly imposes any material restriction on the payment right or receipt ability of amounts by the Company ETP or any of its Subsidiaries, Subsidiaries to compete with any other person or relating to material Indebtedness acquire or dispose of the securities of another person or (other than any Indebtedness solely between B) contains an exclusivity or “most favored nation” clause that restricts the Company and business of ETP or any of its Subsidiaries)Subsidiaries in a material manner;
(iii) any material joint venture contractsmortgage, strategic cooperationnote, partnership arrangements debenture, indenture, security agreement, guaranty, pledge or other agreements outside agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company ETP or any of its Subsidiaries with any third partyin an amount in excess of $50 million;
(iv) any Contract that limits provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a value, or requiring the payment of an annual amount by ETP and its Subsidiaries, in excess of $50 million;
(v) any material respect joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between ETP and its Subsidiaries or among ETP’s Subsidiaries;
(vi) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or any declare or pay dividends in respect of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiariescapital stock, taken as a whole;
(v) any material Contract entered into after June 30partnership interests, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital membership interests or other equity interests of another Person;
(vi) any Contract between or among interests, as the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiariescase may be;
(vii) any acquisition Contract between that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the Company date hereof by ETP or any of its Subsidiaries and any director or executive officer in excess of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;$50 million; and
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right material lease or sublease with respect to terminate such Contract as a result of this Agreement or the consummation an ETP Leased Real Property. All contracts of the Merger where (A) such Contract requires any payment, taken as whole, that is material types referred to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ixviii) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is are referred to herein as a “ETP Material ContractContracts.”.
(b) As of the date of this Agreement, except Except as would not have a Company have, individually or in the aggregate, an ETP Material Adverse Effect, (i) neither ETP nor any Subsidiary of ETP is in breach of or default under the terms of any ETP Material Contract, (ii) to the knowledge of ETP, no other party to any ETP Material Contract is in breach of or default under the terms of any ETP Material Contract and (iii) each ETP Material Contract is a legal, valid and binding obligation of ETP or the Company or its Subsidiaries Subsidiary of ETP which is party thereto and, to the Company’s Knowledgeknowledge of ETP, the of each other parties party thereto, (ii) neither the Company nor any of its Subsidiaries norand is in full force and effect, subject to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractRemedies Exceptions.
Appears in 2 contracts
Samples: Merger Agreement (Energy Transfer Partners, L.P.), Merger Agreement (Sunoco Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as Section 3.16 of the date hereofSeller Disclosure Schedule sets forth a true and complete list of all Contracts that are Assets or under which there is an Assumed Liability, none in each case under which any party thereto has continuing Liabilities or rights, with respect to any of the Company or its Subsidiaries is following (each, a party to or bound by:“Material Contract”):
(i) (A) any Contract that would be required containing any covenant (1) prohibiting or limiting the right of Parent or any of its Affiliates to be filed by the Company pursuant engage in any line of business or to Item 4 compete with any Person in any line of the Instructions business or in any market or geographic location, or (2) prohibiting Parent or any of its Affiliates from engaging in business with any Person or levying a fine, charge or other payment for doing so, or (B) any Contract otherwise qualifying as a Material Contract granting to Exhibits any Person a right of Form 20-F under the Exchange Actfirst refusal, right of first offer, “most favored nation” or similar arrangement;
(ii) any Contract involving Contracts for the payment acquisition or receipt of amounts disposition by the Company Parent or any of its SubsidiariesAffiliates of any ownership interest in any other Person or other business enterprise (A) since November 1, 2014 for consideration with an aggregate value of $1,000,000 or relating more or (B) pursuant to material Indebtedness (other than any Indebtedness solely between the Company and which Parent or any of its Subsidiaries)Affiliates is subject to any continuing deferred purchase price, “earn out”, purchase price adjustment or non-competition payment obligations;
(iii) all Contracts related to the incurrence of Indebtedness (whether incurred, assumed, guaranteed or secured by any material joint venture contractsasset), strategic cooperation, partnership arrangements or other agreements outside than accounts receivables and payables in the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries consistent with any third partypast practice;
(iv) any Contract that limits in grants to any third party an Encumbrance, other than a Permitted Encumbrance, on all or any part of any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeAssets;
(v) all Contracts with Material Customers or Material Suppliers;
(vi) any material Contract entered into after June 30relating to any (A) material Business Intellectual Property or IT Assets that are Purchased Assets or (B) material Intellectual Property or IT Assets used primarily in the Business and licensed to Parent or its Affiliates from a third party, 2011 other than in the case of clauses (A) or not yet consummated(B) off-the-shelf software with annual fees of less than $500,000;
(vii) all Contracts other than purchase orders made in the ordinary course of business involving the expenditure, for payment or receipt by Parent or any of its Affiliates attributable to the acquisition Business during 2016 or dispositionexpected in 2017 (calculated using the average expenditure, directly payment or indirectly receipt per month during the 2017 year to date multiplied by twelve (including by merger, consolidation, combination or amalgamation12)) of assets more than $2,000,000 in the aggregate;
(viii) Contracts relating to any joint venture, partnership or similar arrangement of Parent or any of its Affiliates, including any agreement to share profits or losses;
(ix) any Contract involving a resolution or settlement of any actual or threatened Action with either a value greater than $1,000,000 or other than assets purchased material ongoing requirements;
(x) any obligation, such as a put or similar right, pursuant to capital expenditures) which Parent or share capital any of its Affiliates could be required to purchase, redeem, or other otherwise acquire an equity interests securities of another Person;
(vixi) any Contract between obligation to make any investment in (in the form of a loan, capital contribution or among the Company or any of its Subsidiariesotherwise, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material with respect to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made trade accounts receivable in the ordinary course of businessbusiness consistent with past practice), which are material or provide any guarantee with respect to the Company and its Subsidiariesobligations of, taken as a whole, or any third party; or
(xii) any Contract required to be disclosed on Section 3.24 of the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”Seller Disclosure Schedule.
(b) As True and complete copies of all Material Contracts (other than immaterial amendments, supplements, exhibits or schedules thereto) have been made available to Buyer prior to the date hereof. All of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, Contracts are valid and binding obligation on each party thereto and are in full force and effect in accordance with their terms, except to the extent they have previously expired or terminated in accordance with their terms and except with respect to Contracts listed on Section 3.16(a)(xii) of the Company Seller Disclosure Schedule that are terminated prior to Closing pursuant to Section 5.06. None of Parent or any of its Subsidiaries party thereto Affiliates is (with or without notice or lapse of time, or both) in material violation of or material default under any Material Contract, and, to the Company’s KnowledgeKnowledge of Parent and Sellers, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, there is no existing or claimed material violation or material default by any other party thereto is in breach or violation of, or default under, to any Material Contract and no event has occurred or not occurred through the Company’s Contract. None of Parent or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not Affiliates has received any written claim or notice of defaultany actual or threatened termination, termination cancellation or cancellation under limitation of any such Material Contract.
Appears in 2 contracts
Samples: Purchase Agreement (Halyard Health, Inc.), Purchase Agreement (Owens & Minor Inc/Va/)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 4.12(a) of the Company SEC Reports filed prior Disclosure Letter identifies each of the following Contracts to which a Company Entity or any Company Subsidiary is a party as of the date of this Agreement other than any Contract that is or constitutes (1) a nondisclosure agreement entered into (x) in the ordinary course of business or (y) in connection with discussions, negotiations, and transactions related to this Agreement, as of other Acquisition Proposals, or other potential strategic transactions or (2) a Company Plan (the date hereofContracts required to be set forth on such schedule, none of the Company or its Subsidiaries is a party to or bound by:“Material Contracts”):
(i) other than any Media Agreement or any Talent Agreement, any Contract that limits the freedom or right of a Company Entity or any Company Subsidiary to sell, distribute, produce or manufacture any product, project or service in a manner that would be required material to be filed by the Company pursuant to Item 4 Entities and the Company Subsidiaries, taken as a whole, either by (A) materially limiting the freedom or right of the Instructions Company Entities and the Company Subsidiaries from engaging in any line of business or to Exhibits compete with any other Person in any location or line of Form 20-F under business or (B) providing “most favored nation” rights (including with respect to pricing) or exclusivity obligations or restrictions, in each case, in favor of a party other than the Exchange ActCompany Entities or the Company Subsidiaries;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between Media Agreement or Talent Agreement, any Contract that requires by its terms or is reasonably likely to require, during the remaining term of such Contract, annual consideration to or from a Company and Entity or any Company Subsidiary in an amount having an expected value in excess of its Subsidiaries$20,000,000 in the fiscal year ending December 31, 2024 (each, a “Specified Contract”);
(iii) other than any Media Agreement or any Talent Agreement, any Contract under which a Company Entity or any Company Subsidiary (A) licenses or sublicenses (or grants rights in or to use) Intellectual Property Rights that are material to the business of the Company Entities and the Company Subsidiaries, taken as a whole, to any third party, (B) licenses or sublicenses (or is granted rights in or to use) Intellectual Property Rights from any third party that are material to the business of the Company Entities and the Company Subsidiaries, taken as a whole, or (C) has entered into any covenant not to sue or assert immunity from suit with respect to material Intellectual Property Rights, including any material joint venture contractscoexistence agreements and material settlement agreements (in each case, strategic cooperationother than (v) non-disclosure agreements, partnership arrangements (w) non-exclusive licenses granted by a Company Entity or other agreements outside a Company Subsidiary in the ordinary course of business involving to end users in connection with the provision or sale of any product or service, (x) non-exclusive licenses granted to a sharing Company Entity or a Company Subsidiary by any customer, employee, consultant, or independent contractor of profitsa Company Entity or a Company Subsidiary in the ordinary course of business, losses(y) licenses of commercially available Software licensed in object code form only granted to a Company Entity or a Company Subsidiary, costs or liabilities by the Company (z) licenses to open source, public, or any of its Subsidiaries with any third party;
(iv) any freeware Software, or other materials), in each case, which Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the business of the Company and its Entities or the Company Subsidiaries, taken as a whole;
(iv) any Contract relating to indebtedness for borrowed money in excess of $10,000,000 (whether incurred, assumed, guaranteed, or secured by any asset) of a Company Entity or any Company Subsidiary;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) any Media Agreement or share capital any Talent Agreement, any Contract constituting a joint venture, partnership, or other equity interests similar arrangement that includes the sharing of profits and losses with another Person, in each case, that is material to the business of the Company Entities and the Company Subsidiaries, taken as a whole;
(vi) any Contract between that prohibits (A) the payment of dividends or among distributions in respect of the capital stock of the Company or equity interests of any of its SubsidiariesManager, on the one hand, and any of their respective Affiliates (other than the Company OpCo or any Company Subsidiary, (B) the pledging of its Subsidiaries), on the capital stock or other hand, that involves payments, taken as whole, that is material to equity interests of a Company Entity or a Company Subsidiary or (C) the issuance of any guaranty by any Company and its SubsidiariesEntity;
(vii) any Contract between that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10)(i) or any (ii) of its Subsidiaries and any director Regulation S-K under the Securities Act or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares that would be required to be disclosed pursuant to under Item 7B or Item 19 404 of Form 20Regulation S-F K under the Exchange Securities Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value business of the outstanding receivables due to Company Entities and the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have that is a Company Material Adverse Effect. Each such Contract described in clauses (i) through Related Party Transaction other than offer letters that can be terminated at will without severance obligations;
(ix) above other than in connection with any Permitted Content Activity, (A) any Contract for the sale, license, lease or sublease of any material Owned Real Property or (B) any Material Lease;
(x) any Contract since the Reference Date, that relates to the acquisition or disposition by a Company Entity or any Company Subsidiary, involving consideration in excess of $35,000,000, of any Person or other business organization, division, or business of any Person (whether by merger or consolidation, by the purchase of a controlling equity interest in or substantially all of the assets of such Person, or by any other manner);
(xi) any Contract with any Governmental Authority under which payments in excess of $20,000,000 were received by a Company Entity or any Company Subsidiary in the most recently completed fiscal year;
(xii) other than any Media Agreement or Talent Agreement, any Contract that is material to the Company Entities and the Company Subsidiaries, taken as a whole, pursuant to which a Company Entity or any Company Subsidiary (A) has continuing guarantee, “earn-out,” or similar contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business), including (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (y) payment of royalties or other amounts calculated based upon any revenue or income of a Company Entity or any Company Subsidiary, in each such case, that could result in payments in excess of $20,000,000 or (B) grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to exclusively license, or any other similar rights with respect to any product or service of the Company Entities or the Company Subsidiaries, or any Company Intellectual Property that is material to the business of the Company Entities and the Company Subsidiaries, taken as a whole, in each case, involving annual consideration in excess of $20,000,000 in the fiscal year ending December 31, 2024;
(xiii) any Contract since the Reference Date, the primary purpose of which is to provide for indemnification or guarantee of the obligations of any other Person that would be a Material Contract but for the exception of being filed as an exhibit material to the business of the Company SEC Reports is referred to herein Entities and the Company Subsidiaries, taken as a whole, other than any such Contracts entered into in the ordinary course of business;
(xiv) any hedging, swap, derivative, or similar Contract;
(xv) other than any Media Agreement or any Talent Agreement, any Contract material to the business of the Company Entities and the Company Subsidiaries, taken as a whole, that requires the services, performance or involvement of any particular employee or service provider of a Company Entity or any Company Subsidiary or that otherwise contains a so-called “Material Contractkey person”, “essential element” or “of the essence” provision with respect to any such Person;
(xvi) any Media Agreement that involves either annual consideration to or from a Company Entity or any Company Subsidiary of $20,000,000 or more (in cash or kind);
(xvii) any settlement, conciliation or similar agreement (A) pursuant to which a Company Entity or any Company Subsidiary is obligated after the date of this Agreement to pay consideration in excess of $10,000,000 or (B) that would otherwise materially limit the operation of the Company Entities and the Subsidiaries as currently operated;
(xviii) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of a Company Entity or any other Contract relating to disposition, voting or dividends with respect to any equity securities of a Company Entity.
(b) As The Company has made available to the Parent Entities and the Merger Subs or their respective Representatives an accurate and complete copy of each Material Contract (except with such redactions as may be clearly marked on such copies) as in effect as of the date of this Agreement, except . Except as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, : (i) each Material Contract is a legal, valid and binding obligation none of the Company Entities or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the Knowledge of the Company’s Knowledge, any other party thereto is to each such Contract, are in breach or violation of, of or default under, under any Material Contract and none of the Company Entities or the Company Subsidiaries, nor, to the Knowledge of the Company, any other party to each such Contract, have taken or failed to take any action, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third partyoccurred, that with notice or without notice, lapse of time time, or both would constitute a breach or violation of, of or default underunder any Material Contract, (ii) each Material Contract is, with respect to a Company Entity or any Company Subsidiary (as applicable) and, to the Knowledge of the Company, any Material Contract other party to such Contract, a valid agreement, binding, and in full force and effect, (iii) to the Knowledge of the Company’s Knowledge, each Material Contract is enforceable by a Company Entity or a Company Subsidiary (as applicable) in accordance with its terms, subject to the Enforceability Exceptions, and (iv) since the Reference Date, through the date of this Agreement, none of the Company and its Entities or the Company Subsidiaries have not received any written claim notice regarding any violation or notice of default, termination breach or cancellation default under any Material Contract that has not since been cured. To the Knowledge of the Company, since the Reference Date, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with a Company Entity or any Company Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company Entities and the Company Subsidiaries other than, in each case, as would not reasonably be expected to have a Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Material Contracts. (a) Except for this Agreement and except for Contracts agreements filed as exhibits to the Company Partnership SEC Reports filed prior to Documents, as of the date of this Agreement, as neither the Partnership nor any of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness that (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiA) expressly imposes any material joint venture contracts, strategic cooperation, partnership arrangements restriction on the right or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company Partnership and its Subsidiaries, taken as a whole, to compete with any other person or acquire or dispose of the conduct securities of their respective businessesany other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Partnership or any of its Subsidiaries in a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Partnership or any of its Subsidiaries in an amount in excess of $25 million, other than such indebtedness among the Partnership and its wholly owned Subsidiaries;
(iv) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Partnership and its Subsidiaries or among the Partnership’s Subsidiaries;
(v) any collective bargaining agreement or other Contract with any labor union, labor organization, or employee association applicable to employees of the absence Partnership or any of which would have a Company Material Adverse Effect. Each such Contract described in clauses its Subsidiaries;
(ivi) through (ix) above and each such any Contract that would be is a Material Contract but for settlement, conciliation or similar agreement pursuant to which the exception Partnership or any of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of its Subsidiaries will have any material outstanding obligation after the date of this Agreement, except as would not have a Company Material Adverse Effect, ;
(ivii) each Material any Contract is a legal, valid and binding obligation expressly limiting or restricting the ability of the Company Partnership or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries norto make distributions or declare or pay dividends in respect of their capital stock, to partnership interests, limited liability company interests or other equity interests, as the Company’s Knowledge, case may be;
(viii) any acquisition Contract that contains “earn out” or other party thereto is in breach or violation ofcontingent payment obligations, or default underremaining indemnity or similar obligations, any Material Contract and no event has occurred or not occurred through that could reasonably be expected to result in payments after the Company’s date hereof by the Partnership or any of its Subsidiaries’ action Subsidiaries in excess of $25 million; and
(ix) any material lease or inaction or, sublease with respect to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractPartnership Leased Real Property.
Appears in 2 contracts
Samples: Merger Agreement (Crestwood Equity Partners LP), Merger Agreement (Crestwood Midstream Partners LP)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Agreement, Section 4.20 of the Company SEC Reports filed prior to Disclosure Letter contains a complete and correct list, as of the date of this Agreement, of each Contract described below in this Section 4.20(a) under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date hereof, none of this Agreement other than Company Benefit Plans (all Contracts of the Company or its Subsidiaries is a party type described in this Section 4.20(a) being referred to or bound by:herein as the “Material Contract”):
(i) any Contract that (A) limits, curtails or restricts the ability of the Company or any Company Subsidiary to (x) compete or conduct activities in any geographic area or line of business with any Person or (y) use or enforce any Intellectual Property, or (B) includes any “most favored nation”, exclusive marketing, right of first refusal, first offer or first negotiation or other exclusive rights of any type or scope or that otherwise restrict the Company or any Company Subsidiary (or, upon completion of the Offer and the Merger, would restrict Parent or any of its Subsidiaries from engaging or competing in any line of business or in any geographic area), in the case of clauses (A) and (B) that would reasonably be required expected to be filed by material to the operations of the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Actand Company Subsidiaries, taken as a whole;
(ii) any each acquisition or divestiture Contract involving or licensing agreement that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the payment receipt or receipt making of amounts by the Company or any future payments in excess of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)$7,500,000;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside Contract (excluding licenses for commercial off the ordinary course of business involving a sharing of profits, losses, costs or liabilities by shelf computer software that are generally available on nondiscriminatory pricing terms) under which the Company or any Company Subsidiary is granted any license, option or other right (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property of its Subsidiaries with a third party, or under which any third partyparty is granted any license, option or other right (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property of the Company or any Company Subsidiary, in each case, which Contract is material to the Company and the Company Subsidiaries, taken as a whole;
(iv) any Contract that limits in any material respect the ability of the Company providing for indemnification, contribution or any of its Subsidiaries or any of their respective employees to compete guaranty in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner an amount that is material to the Company and its the Company Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 under which the Company or not yet consummated, for any Company Subsidiary grants or agrees to grant a license under all or substantially all of the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) patents of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personthe Company and the Company Subsidiaries;
(vi) any material Contract between with a Major Customer or among Major Supplier;
(vii) any Contract with any Governmental Entity that is material to the conduct of the business of the Company or any of the Company Subsidiaries taken as a whole;
(viii) each Contract not otherwise described in any other subsection of this Section 4.20(a) pursuant to which the Company or any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $10,000,000 in the twenty-four (24)-month period following the date hereof, which cannot be terminated by the Company or such Company Subsidiary on less than sixty (60) days’ notice without material payment or penalty;
(ix) each Contract relating to outstanding Indebtedness of the Company or the Company Subsidiaries for borrowed money, any indenture or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) other than (A) Contracts solely among the Company and any wholly owned Company Subsidiary and (B) any Contracts relating to Indebtedness explicitly filed with the SEC in the Company SEC Documents on its SubsidiariesElectronic Data Gathering Analysis and Retrieval System;
(x) each material Contract that provides for or relates to interest rate derivatives, currency derivatives or other derivatives;
(xi) each Contract between the Company or any Company Subsidiary, on the one hand, and any of their respective Affiliates officer, director or affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary or any of its Subsidiariestheir respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) including any Contract between pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member, but not including any Company Benefit Plans;
(xii) any material joint venture, strategic alliance, joint development or partnership agreement;
(xiii) any collective bargaining agreement or other Contract with any labor union, labor organization or work council;
(xiv) (A) all employment Contracts of its Subsidiaries those employees and any director or executive officer of managers that received from the Company or any Person beneficially owning five percent Company Subsidiary annual compensation (including base salary, commissions, and annual or more other periodic or project bonuses) in excess of $150,000 paid through the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result date of this Agreement or the consummation of the Merger where (A) such Contract requires any paymentfor fiscal year 2015, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to all consulting Contracts for those consultants that received from the Company and its Subsidiaries or any Company Subsidiary annual compensation in excess of $150,000 paid through the date of this Agreement for fiscal year 2015 (provided that references to such Contracts have been made completely anonymous for those employees, managers or consultants based in jurisdictions where this is required under such Contract, taken as whole, that is material to the Company and its Subsidiariesapplicable data privacy/protection Laws); and
(ixxv) any Contract not otherwise described in any other contracts and agreementssubsection of this Section 4.20(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Material Contract where such breach or default would have or reasonably be expected to have, whether individually or not made in the ordinary course of businessaggregate, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for To the exception knowledge of being filed the Company, as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date hereof, no other party to any Material Contract is in breach of this Agreementor default (and no event has occurred or condition or circumstance exists that would, except with or without notice or lapse of time, would reasonably be expected to result in a breach of default) under the terms of any Material Contract where such breach or default would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries the Company Subsidiary which is party thereto and, to the knowledge of the Company’s Knowledge, the of each other parties party thereto, (ii) neither the Company nor any of enforceable against each such Person in accordance with its Subsidiaries norterms, and is in full force and effect, subject to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractEnforceability Limitations.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (On Semiconductor Corp), Agreement and Plan of Merger (Fairchild Semiconductor International Inc)
Material Contracts. Schedule 3.10 sets forth a true, correct and complete list of all existing contracts (a) Except for this Agreement and except for Contracts filed as exhibits involving an annual commitment or annual payment to or from the Transferred Subsidiaries of more than Fifty Thousand United States Dollars (US$50,000), (b) with respect to the Company SEC Reports filed prior Transferred Subsidiaries relating to any indebtedness for borrowed money or the date deferred purchase price of this Agreementproperty, as (c) which limit or restrict in any respect any of the date hereof, none of the Company or its Transferred Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits from engaging in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material jurisdiction, (d) relating to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly disposition of the Transferred Subsidiaries (including whether by merger, consolidationsale of stock, combination or amalgamation) sale of assets (other than assets purchased pursuant to capital expendituresor otherwise) or share capital or other equity interests of another Person;
(vie) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which business and that are material significant to the Company and its Transferred Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto andincluding all amendments thereto, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor which Seller or any of its Subsidiaries nor, to is a party or by which it is bound (the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any “Material Contracts”). Each Material Contract is legal, valid, binding and no event has occurred or not occurred through the Company’s enforceable in accordance with its respective terms with respect to Seller or any of its Subsidiaries’ action or inaction or, and, to the CompanySeller’s Knowledge, each other party to such Material Contract, except as the action same may be limited by bankruptcy, insolvency, reorganization, moratorium or inaction other Laws affecting the rights of creditors generally and subject to the Laws governing (and all limitations on) specific performance, injunctive relief and other equitable remedies. There are no existing defaults or breaches by Seller or any third partyof its Subsidiaries under any Material Contract or any other contract to which Seller or any of its Subsidiaries is party and which relates to the Transferred Subsidiaries (or events or conditions which, that with notice or lapse of time or both both, would constitute a breach default or violation ofbreach) and, to Seller’s Knowledge, there are no such defaults (or events or conditions which, with notice or lapse of time or both, would constitute a default under, or breach) with respect to any third party to any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such other contract, except in each case defaults or breaches that would not reasonably be expected to have a Material ContractAdverse Effect on the Transferred Subsidiaries.
Appears in 2 contracts
Samples: Acquisition Agreement (Wireless Facilities Inc), Acquisition Agreement (LCC International Inc)
Material Contracts. (aSection 3.9(a) Except for this Agreement of the Seller Disclosure Schedule is a true and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreementcomplete list, as of the date hereof, none of all of the Company following Contracts to which Seller or any of its Subsidiaries Affiliates is a party or by which they are bound and that relate solely to or bound by:the Consumer Care Business (the “Material Contracts”) (excluding, in each case, any Contract with any merchandiser):
(i) Contracts for the marketing of Consumer Care Products involving reasonably anticipated payments to or from the Consumer Care Business in excess of $500,000 in any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Actcalendar year;
(ii) Contracts for the distribution of Consumer Care Products involving reasonably anticipated payments to or from the Consumer Care Business in excess of $500,000 in any Contract calendar year;
(iii) Contracts for (x) the manufacturing of Consumer Care Products or (y) the supply of any materials forming part of the manufacturing process of products of the Consumer Care Business, in each case involving reasonably anticipated payments to or from the payment Consumer Care Business in excess of $500,000 in any calendar year;
(iv) all Purchased Consumer Care IP Agreements that are material to the operation of the Consumer Care Business as currently conducted;
(v) all Real Property Leases;
(vi) Contracts evidencing Indebtedness;
(vii) Contracts evidencing any obligations of any Company or receipt any of amounts by the its Subsidiaries to issue, sell, repurchase or redeem any Equity Securities of such Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiviii) all Business Employment Contracts;
(ix) all Collective Bargaining Agreements;
(x) leases of personal property under which the Companies or any material joint venture contractsof their respective Subsidiaries (or any member of the Seller Group) is the lessee and is obligated to make payments of more than $250,000 in any calendar year;
(xi) Contracts limiting the freedom of any Company or a Subsidiary of any Company or the Consumer Care Business to engage in any line of business, strategic cooperation, partnership arrangements acquire any entity or other agreements compete with any Person or in any market or geographical area; and
(xii) Contracts entered into outside of the ordinary course of business within the twelve (12) month period immediately prior to the date hereof, providing for a business combination, divestment of material assets, joint venture or similar relationship, involving a sharing of profitsthe Companies, losses, costs or liabilities by the Company Transferred Consumer Care Assets or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability aspect of the Company or any of its Subsidiaries or any of their respective employees to compete in any Consumer Care Business, and which contain material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, ongoing obligations on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer part of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”Companies.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Stock and Asset Purchase Agreement (Merck & Co. Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 3.12(a) of the Company SEC Reports filed prior to Disclosure Letter sets forth a list of all Material Contracts as of the date of this Agreement. For purposes of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) “Material Contract” means any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by which the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of is a party or by which the Company or any of its Subsidiaries or any of their respective employees properties or assets is bound (other than this Agreement and other than any Contract that is to be transferred or assigned pursuant to the Life Sciences SAPA or that relates solely to the Life Sciences Assets or Life Sciences Liabilities) that:
(i) is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K;
(ii) provides for the purchase or sale of goods or products from a supplier or to a customer of the Company or any of its Subsidiaries which the Company or its Subsidiaries reasonably expect will result in purchases or sales in the aggregate amount that exceed $5,000,000 in the 2013 or 2014 fiscal year;
(iii) relates to a joint venture, partnership or other similar arrangement or to the formation, creation, governance or control of, or the economic rights or obligations of the Company or any of its Subsidiaries in, any such joint venture, partnership or other similar arrangement;
(iv) provides for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $1,000,000, other than (A) Indebtedness solely between or among any of the Company and any of the Non-Life Sciences Subsidiaries and (B) letters of credit;
(v) limits the ability of the Company or any of its Subsidiaries (A) to compete in any material line of business or with any Person or entity or in any geographic area for any duration, (B) to sell to or during purchase from any period Person or entity other than exclusive sales agreements entered into in the ordinary course of time in a manner that is business consistent with past practice, (C) to deliver services to any other Person or (D) to make use of any material to Intellectual Property owned or otherwise used by the Company and or any of its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) provides that the Company or any Contract between of its Non-Life Sciences Subsidiaries license from any Person besides the Company or among any of its Non-Life Sciences Subsidiaries any material Intellectual Property that is incorporated into any Company product (excluding software code or other materials that are generally available on standard commercial terms) (“Inbound IP Contracts”);
(vii) provides that the Company or any of its Non-Life Sciences Subsidiaries license to any Person besides the Company or any of its Non-Life Sciences Subsidiaries any material Intellectual Property owned by the Company or its Subsidiary, other than (A) nonexclusive licenses granted to customers or to distributors, resellers, or other channel partners in the ordinary course of business, (B) nonexclusive licenses granted to manufacturers, consultants, contractors, or suppliers of the Company or any of its Subsidiaries that permit use for the benefit of the Company or any of its Subsidiaries, on or (C) nonexclusive licenses that do not include the one handright to make, have made, distribute or sell any Intellectual Property owned by the Company or its Subsidiaries (“Outbound IP Contracts”);
(viii) contains a “standstill” or similar agreement; or
(ix) is a Real Property Lease.
(b) All of the Material Contracts are valid and any binding and in full force and effect (except those that are terminated after the date of this Agreement in accordance with their respective Affiliates (other than terms and not as a result of a breach or default thereunder by the Company or any of its Subsidiaries). To the Knowledge of the Company, on no Person is challenging the other hand, that involves payments, taken as whole, that is validity or enforceability of any Material Contract in any material to respect. Neither the Company and its Subsidiaries;
(vii) any Contract between the Company or nor any of its Subsidiaries and any director or executive officer Subsidiaries, nor to the Knowledge of the Company or Company, any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, has violated any provision of, or committed or failed to perform any act which (iiwith or without notice, lapse of time or both) would constitute a default under any provision of, and neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach has received notice that it has violated or violation of, or default defaulted under, any Material Contract, except for those violations and defaults which have not had and would not reasonably be expected to have a Company Material Adverse Effect. No party to any Material Contract and no event has occurred or not occurred through given the Company’s Company or any of its Subsidiaries’ action Subsidiaries written notice of its intention to cancel, terminate, change the scope of its rights under or inaction or, fail to renew any Material Contract. To the Knowledge of the Company’s Knowledge, the action no current or inaction former officer or director of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received (i) has (whether directly or indirectly through another entity in which such Person has a material interest, other than as the holder of less than 2% of a class of securities of a publicly traded company) any written claim material interest in any property or notice assets of defaultthe Company (except as a stockholder) or any competitor, termination customer, supplier or cancellation under agent of the Company or (ii) is currently a party to any such Material Contract.
(c) A true, complete and unredacted copy of each Material Contract, together with all exhibits, schedules, amendments and supplements thereto, has been made available to Parent.
Appears in 2 contracts
Samples: Merger Agreement (Entegris Inc), Merger Agreement (Atmi Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits disclosed in the Specified Company SEC Documents, to the extent that it is reasonably apparent that the disclosure in the Specified Company SEC Reports filed prior Documents is responsive to the matters set forth in this Section 3.12(a), as of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
by any contract, arrangement, commitment or understanding (whether written or oral), other than hedging or similar arrangements in the ordinary course of business consistent with past practice, (i) any Contract that would be required which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be filed by performed after the Company pursuant to Item 4 date of the Instructions to Exhibits of Form 20-F under the Exchange Act;
this Agreement, (ii) any Contract involving which materially restrains, limits or impedes the payment or receipt of amounts by the Company Company’s or any of its Subsidiaries’ ability to compete with or conduct any business or any line of business (including (A) geographic limitations on the Company’s or any of its Subsidiaries’ activities or (B) any confidentiality agreement, area of mutual interest or relating to material Indebtedness standstill agreement with any third party (other than or any Indebtedness solely between agent thereof) that contains any exclusivity or standstill provisions that are or will be binding on the Company and Company, any of its Subsidiaries or, after the Effective Time, Parent or any of its Subsidiaries);
; provided that the Company need not disclose in the Company Disclosure Letter information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements prohibit the Company from disclosing the existence or any terms of such agreements to third parties, except that if any such agreements contain any material restrictions, limits or impediments on the Company’s or its Subsidiaries’ ability to compete with or conduct any business or any line of business, such restrictions, limits and impediments shall be disclosed without providing the identity of the parties to the agreements on the Company’s Disclosure Letter, (iii) any which is a material joint venture contracts, strategic cooperation, partnership arrangements take-or-pay agreement or other agreements outside the ordinary course similar agreement that entitles purchasers of business involving production to receive delivery of Hydrocarbons without paying therefor, (iv) which contains a sharing put, call or other right of profits, losses, costs acquisition or liabilities by disposition pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests (including licensing or leasehold interests) of any Person or assets that have a market value or purchase price of more than $5,000,000, or, with any third party;
(iv) any Contract respect to calls on production, that limits in any material respect the ability of obligate the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in sell Hydrocarbons at a manner that price which is material to the Company and its Subsidiariesless than market value, taken as a whole;
(v) any material Contract entered into after June 30, 2011 which is a partnership or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material joint venture relating to the Company and its Subsidiaries;
(vii) formation, creation, operation, management or control of any Contract between the Company partnership or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are joint venture material to the Company and its Subsidiaries, taken as a whole, or (vi) which is otherwise material to the conduct of their respective businesses, or the absence of which would have Company and its Subsidiaries taken as a Company Material Adverse Effectwhole. Each such Contract contract, arrangement, commitment or understanding of the type described in clauses this Section 3.12(a) (i) through (ix) above and each such Contract that would be a Material Contract but for vi), whether or not disclosed in the exception of being filed as an exhibit to the Specified Company SEC Reports Documents, is referred to herein as a “Company Material Contract”.
” (bfor purposes of clarification, each “material contract” (as such term is defined in Item 601(b)(10) As of Regulation S-K of the SEC) to be performed after the date of this Agreement, except as would whether or not have filed with the SEC or disclosed in the Specified Company SEC Documents, is a Company Material Adverse EffectContract). The Company has previously made available to Parent true, complete and correct copies of each Company Material Contract other than those which the Company is entitled to omit from the Company Disclosure Letter pursuant to the proviso to clause (ii) of the first sentence of this Section 3.12(a).
(i) each Each Company Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties theretoand in full force and effect, (ii) neither the Company nor any and each of its Subsidiaries norhas performed in all respects all obligations required to be performed by it to date under each Company Material Contract, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and (iii) no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction condition exists which constitutes or, to the Company’s Knowledge, the action or inaction of any third party, that with after notice or lapse of time or both both, would constitute constitute, a breach default on the part of the Company or violation of, or default under, any of its Subsidiaries under any such Company Material Contract and (iiiiv) to the Knowledge of the Company’s Knowledge, no other party to such Company Material Contract is in default in any respect thereunder, except in each case for any invalidity, nonperformance, event, condition or default that, individually or in the Company aggregate, has not had, and its Subsidiaries have would not received any written claim or notice of defaultbe reasonably likely to have, termination or cancellation under any such a Material ContractAdverse Effect on the Company.
Appears in 2 contracts
Samples: Merger Agreement (Halcon Resources Corp), Merger Agreement (Georesources Inc)
Material Contracts. (a) Except for Section 4.15(a) of the Company Disclosure Schedule sets forth a list as of the date of this Agreement and except for of each of the following Contracts filed as exhibits to which the Company SEC Reports filed prior or any Company Subsidiary is a party or by which it is bound (each such Contract listed or required to be so listed, and each of the following Contracts to which the Company or any Company Subsidiary becomes a party or by which it becomes bound after the date of this Agreement, as of the date hereof, none of the a “Company or its Subsidiaries is a party to or bound by:Material Contract”):
(i) any Contract that would be required to be filed by the Company pursuant to is a “material contract” as such term is defined in Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F under the Exchange ActK;
(ii) any Contract involving the payment that (A) limits or receipt of amounts by the Company or any of its Subsidiariespurports to limit, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect respect, the ability freedom of the Company or any of its Subsidiaries Company Subsidiary to engage or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during that would so limit or purport to limit, in any period material respect, such freedom of time the Surviving Company, Parent, the Company or any of their respective Affiliates after the Effective Time, (B) contains any material exclusivity or “most favored nation” obligations or restrictions or similar provisions that are binding on the Company or any Company Subsidiary (or, after the Effective Time, that would be binding on the Surviving Company, Parent or any of their respective Affiliates), (C) otherwise limits or restricts, in any material respect, the Company or any Company Subsidiary (or, after the Effective Time, the Surviving Company, Parent or any of their respective Affiliates) from hiring or soliciting any Person for employment, or (D) levies a fine, charge or other payment for doing any of the foregoing;
(iii) promissory notes, loan agreements, indentures, evidences of Indebtedness or other instruments providing for or relating to the lending of money, including any sale and leaseback transactions, capitalized leases and other similar financing arrangements or that provides for the guarantee, support, indemnification, assumption or endorsement by the Company or any Company Subsidiary of, or any similar commitment by the Company or any Company Subsidiary with respect to the obligations, liabilities or Indebtedness of any other Person, in each case in a manner that is material to principal amount in excess of $1,000,000;
(iv) any Contract (other than the Company and its Subsidiaries, taken as a wholeCredit Facilities) restricting the payment of dividends or the making of distributions to shareholders of the Company or the repurchase of stock or other equity of the Company;
(v) any Contract that would require the disposition of any material Contract entered into after June 30, 2011 assets or not yet consummated, for line of business of the acquisition Company or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) any Company Subsidiary as a result of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests the consummation of another Personthe Integrated Mergers;
(vi) any Contract between joint venture, profit-sharing, partnership, strategic alliance, collaboration or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiariessimilar agreements;
(vii) any Contract between pursuant to which the Company or any of its Subsidiaries and Company Subsidiary receives from any director Third Party a license or executive officer of similar right to any Intellectual Property that is material to the Company or any Person beneficially owning five percent or more of the outstanding Shares required Company Subsidiary, other than licenses with respect to be disclosed non-customized Software that (A) is generally available and licensed pursuant to Item 7B or Item 19 standard commercial terms, and (B) with an annual cost of Form 20-F under the Exchange Actless than $250,000;
(viii) any Contract (other than Contracts granting pursuant to which the Company Options) giving the other party the or any Company Subsidiary grants to any Third Party a license or similar right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, Intellectual Property that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the any Company and its Subsidiaries under such ContractSubsidiary, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made than non-exclusive licenses granted in the ordinary course of business;
(ix) Contracts with (A) the top ten (10) customers of the Company based on revenues for the fiscal year ended December 31, 2022 and the nine months ended September 30, 2023 and (B) the top ten (10) vendors of the Company based on costs for the year ended December 31, 2022 and the nine months ended September 30, 2023;
(x) any Related Party Contract;
(xi) any Contract involving the settlement of any action or action threatened in writing (or series of related actions) (other than any actions covered by insurance) that will (A) involve payments after the date hereof in excess of $500,000 or (B) impose material monitoring or reporting obligations outside the ordinary course of business consistent with past practice;
(xii) any Contract for the purchase or sale of real property, in each case entered into or completed on or after January 1, 2021 in excess of $5,000,000;
(xiii) any Leases which provide for annual lease payments in excess of $200,000;
(xiv) any collective bargaining agreement;
(xv) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any Company Subsidiary (other than any such Contracts that are terminable by the Company or any Company Subsidiary on ninety (90) days or less notice without any required material payment or other material conditions, other than the condition of notice); and
(xvi) any Contract that relates to the acquisition or disposition of any business or asset (other than any Contract or arrangement that provides solely for the acquisition of equipment or products in the ordinary course of business) and under which the Company or any Company Subsidiary has a material continuing obligation, including any material “earn-out” or similar contingent payment obligations.
(b) The Company has made available to Parent a true, correct and its Subsidiariescomplete copy of each Material Contract. All of the Company Material Contracts are, taken subject to the Bankruptcy and Equity Exceptions, valid and binding obligations of the Company or a Company Subsidiary (as a wholethe case may be) and, or to the conduct Knowledge of the Company, each of the other parties thereto, and in full force and effect and enforceable in accordance with their respective businessesterms against the Company or Company Subsidiaries (as the case may be) and, to the Knowledge of the Company, each of the other parties thereto (except for such Company Material Contracts that are terminated after the date of this Agreement in accordance with Section 6.1(k)), except where the failure to be valid and binding obligations and in full force and effect and enforceable has not had and would not reasonably be expected to have, individually or in the absence of which would have aggregate, a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a To the Knowledge of the Company, no Person is seeking to terminate or challenge the validity or enforceability of any Company Material Contract but for Contract. Neither the exception of being filed as an exhibit Company nor any Company Subsidiary, nor to the Knowledge of the Company, any of the other parties thereto has violated any provision of, or committed or failed to perform any act that (with or without notice, lapse of time or both) would constitute a default under any provision of, and neither the Company SEC Reports is referred to herein as a “nor any Company Subsidiary has received written notice that it has violated or defaulted under, any Company Material Contract”.
(b) As of the date of this Agreement, except as for those violations and defaults (or potential defaults) that have not had and would not have reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (WillScot Mobile Mini Holdings Corp.), Merger Agreement (McGrath Rentcorp)
Material Contracts. (a) Except for this Agreement Agreement, the Plans and except for Contracts filed the ESPP, as exhibits to the Company SEC Reports filed prior to of the date of this Agreement, as of neither the date hereof, none Company nor any Subsidiary of the Company or its Subsidiaries is a party to or bound byany Contract:
(i) any Contract that would be required to be filed by the Company in the Company SEC Reports as a “material contract” pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange ActSecurities Act that has not been so filed;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiariesthat (A) limits, or relating purports to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contractsmaterially limit, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees Affiliates to compete in any material line of business or within any geographic area or with any Person or entity (B) contains any exclusivity or in similar provision binding upon the Company or any geographic area or during any period of time in a manner its Subsidiaries that is material to the Company and its SubsidiariesCompany’s business, taken as a whole;
(iii) relating to Indebtedness for borrowed money for a principal amount in excess of $1,000,000, other than Contracts among the Company or its Subsidiaries;
(iv) between the Company and any of its directors, officers or Affiliates (other than (x) Contracts not material to the conduct of the business of the Company and its Subsidiaries, or (y) any Contract solely between or among the Company or its Subsidiaries);
(v) that is a license, sublicense, assignment, option or other Contract relating to the Company’s material Intellectual Property Rights, including any such Contract pursuant to which the Company or any of its Subsidiaries is granted any right to use, is restricted in its rights to use or register or permits any other Person to use, enforce or register any Intellectual Property Rights of the Company (other than any enterprise software license or other license to use commercial off-the-shelf computer software under nondiscriminatory pricing terms or licenses contained in service contracts to the extent the licenses contained therein are incidental to such contract, non-exclusive and granted in the ordinary course of business);
(vi) that provides for any most favored nation provision or equivalent preferential pricing terms or similar obligations to which the Company or any of its Affiliates is subject, which is material to the Company and the its Subsidiaries;
(vii) that is a purchase, sale or supply Contract that (x) contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements and (y) has more than one year remaining in the term of the Contract and requires in excess of $1,000,000 in remaining obligations;
(viii) involving future payments, capital expenditures, performance of services or delivery of goods or materials to or by the Company and its Subsidiaries of an amount or value reasonably expected to exceed $1,000,000 in the aggregate during the 12 month period following the date hereof;
(ix) entered into after June 30, 2011 or not yet consummated, for during the past three years involving the acquisition or disposition, directly or indirectly (including by mergermerger or otherwise), consolidation, combination of a business or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital stock or other equity interests of another PersonPerson for aggregate consideration (in one or a series of related transactions) under such Contract of $1,000,000 or more;
(vix) that is a collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(xi) that is a partnership or joint venture agreement or similar Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, relates to an equity investment that involves payments, taken as whole, that in each case is material to the Company and its Subsidiaries;
(viixii) any Contract between that is for a lease, use or occupancy of real or personal property of the Company or its Subsidiaries providing for annual rentals of $1,000,000 or more;
(xiii) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its Subsidiaries and or income or revenues related to any director or executive officer product of the Company or any Person beneficially owning five percent or of its Subsidiaries, which is likely to involve the payment of consideration of more than $1,000,000 in the aggregate over the remaining term of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Actsuch Contract;
(viiixiv) with any Contract (Governmental Entity to which the Company or any of its Subsidiaries is a party, other than individual Contracts granting Company Options) giving involving aggregate consideration during the other party the right to terminate such Contract as a result of this Agreement or the consummation term of the Merger where Contract of less than $1,000,000;
(Axv) such Contract requires under which the Company or any paymentof its Subsidiaries has advanced or loaned any amount of money to any of its officers, taken as wholedirectors, that is material employees or consultants, in each case with a principal amount in excess of $1,000,000 and in each case has not been repaid prior to the date hereof; or
(xvi) that commits the Company and or any of its Subsidiaries or (B) the value Affiliates to enter into any of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effectforegoing. Each such Contract described in clauses clause (i) through clause (ixxvi) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Company Material Contract.”.
(b) As of the date of this Agreement, except Except as would not have reasonably be expected to be material to the Acquired Companies, taken as a Company Material Adverse Effectwhole, (i) each Company Material Contract is a legal, valid and binding obligation of on the Company or its Subsidiaries party thereto andand in full force and effect, to except as enforceability may be limited by the Company’s Knowledge, the other parties theretoEnforceability Exceptions, (ii) neither the Company no Acquired Company, nor any of its Subsidiaries nor, to the knowledge of the Company’s Knowledge, any other party thereto to a Company Material Contract is in breach or violation of, or default under, or has taken or failed to take any Material Contract and no event has occurred action which, with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time time, or both both, would constitute a breach or violation default under the provisions of, or default underany Company Material Contract, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries Acquired Companies have not received any written claim or notice of default, termination or cancellation default under any Company Material Contract and (iv) the Company has not received any written notice in writing from any person that such person intends to terminate any Company Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Innoviva, Inc.), Merger Agreement (Entasis Therapeutics Holdings Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none set forth on Schedule 5.18(a) of the Company or Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to nor are their assets or properties bound by:by any Contract of the following nature (such Contracts as are set forth or required to be set forth on Schedule 5.18(a) of the Company Disclosure Schedule being “Company Material Contracts”):
(i) any Contract that would be required pursuant to be filed by which the Company pursuant or any of its Subsidiaries has provided funds to Item 4 of the Instructions to Exhibits of Form 20or made any loan, capital contribution or other investment in, or assumed any liability or obligation of, any Person, including take-F under the Exchange Act;
(ii) or-pay Contracts or keepwell agreements, or any Contract involving the payment relating to or receipt evidencing indebtedness of amounts by the Company or any of its Subsidiaries, including mortgages, other grants of security interests, guarantees or relating to material Indebtedness notes, except for office equipment leases entered into in the ordinary course of business;
(ii) any Contract for the purchase of any debt or equity security or other than ownership interest of any Indebtedness solely between Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company and or any of its Subsidiaries);
(iii) any material joint venture contractslease, strategic cooperation, partnership arrangements sublease or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by similar Contract under which (A) the Company or any of its Subsidiaries with is a lessor or sublessor of real property owned by any third partyother Person, or makes available for use by any Person, any portion of any premises otherwise occupied, leased or subleased by it, or (B) the Company or any of its Subsidiaries is a lessee or sublessee of, or holds or uses any real property owned by any other Person;
(iv) any lease, sublease or similar Contract under which (A) the Company or any of its Subsidiaries is a lessee or sublessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person, or (B) the Company or any of its Subsidiaries is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by it;
(v) any Contract with any customer, distributor or supplier;
(vi) any Contract with any Governmental Authority;
(vii) any Tax sharing or Tax allocation Contract;
(viii) any Contract with any Related Party of the Company or any of its Subsidiaries;
(ix) any employment or consulting Contract;
(x) any Contract that limits in any material respect limits, or purports to limit, the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time time, or that restricts the right of the Company and its Subsidiaries to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third person exclusive rights (including any exclusive license or right to use any Intellectual Property) or “most favored nation” status or any type of special discount rights;
(xi) any Contract providing for indemnification to or from any Person, except for such indemnification provisions granted to distributors, representatives, consultants or customers of the Company and its Subsidiaries pursuant to the Company’s or its Subsidiaries’ standard Contracts with such parties;
(xii) any royalty Contract and any Contract relating in whole or in part to any Intellectual Property;
(xiii) any joint venture or partnership, merger, asset or stock purchase or divestiture Contract (other than Contracts for the purchase or sale of assets in the ordinary course of business);
(xiv) any Contract relating to settlement of any administrative, judicial or arbitration proceedings within the past five years;
(xv) any Contract that results in any Person holding a manner power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or any of their respective businesses;
(xvi) any Contract, whether or not made in the ordinary course of business that (A) involves a future or potential liability or receivable, as the case may be, in excess of $100,000 on an annual basis or in excess of $250,000 over the current Contract term, or (B) has a term greater than one year and cannot be cancelled by the Company or a Subsidiary of the Company without penalty or further payment and without more than 60 days’ notice; and
(xvii) any other Contract not referenced in the foregoing clauses (i) through (xvi) that is material to the business, operations, assets, financial condition, results of operations or prospects of the Company and its Subsidiaries, taken as a whole;.
(vb) any material Contract entered into after June 30Except for terminations of Company Material Contracts contemplated by Sections 6.19 and 6.20, 2011 or not yet consummated(i) each of the Company Material Contracts is valid, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among binding and in full force and effect and is enforceable against the Company or any one of its Subsidiaries, on and to the one handKnowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and any by general principles of their respective Affiliates equity (other than regardless of whether considered in a proceeding in equity or at Law), (ii) the Company or any one of its Subsidiaries), on if applicable, has performed all material obligations required to be performed by it under the other handCompany Material Contracts and it is not (with or without the lapse of time or the giving of notice, that involves paymentsor both) in breach or default in any material respect thereunder, taken as whole, that is material (iii) to the Knowledge of the Company, (A) no other party to any Company Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder, and its Subsidiaries;
(viiB) no event has occurred or circumstance or condition exists (with or without the lapse of time or the giving of notice, or both) that may contravene, conflict with, or result in a violation or breach of any Contract between Company Material Contract, result in the termination or in a right of termination or cancellation of, or accelerate the performance required by, or result in the triggering of any payment obligations under, or result in the creation of any Encumbrance upon any of the assets or properties of the Company or any of its Subsidiaries and any director under, or executive officer of the Company result in being declared void, voidable, or any Person beneficially owning five percent without further binding effect, or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) in any other contracts and agreementsmodification of or trigger any right or obligation under, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a any Company Material Adverse Effect. Each such Contract described in clauses or provisions thereof; (iiv) through (ix) above and each such Contract that would be a no party to any Company Material Contract but for the exception has given any written notice of being filed as an exhibit to the Company SEC Reports is referred to herein as alleged breach thereof or otherwise threatened such a “Material Contract”.
breach; and (b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (iiv) neither the Company nor any of its Subsidiaries norhas received any written notice that any party to any Company Material Contract intends to cancel or terminate such Company Material Contract, to renegotiate such Company Material Contract, or to exercise or not exercise any options thereunder, and, to the Knowledge of the Company’s Knowledge, no such intent to cancel, terminate, renegotiate or exercise has been otherwise threatened.
(c) Except for terminations of Company Material Contracts contemplated by Sections 6.19 and 6.20, the execution and delivery by the Company of this Agreement and the Ancillary Agreements to which it is a party, and the consummation of the Transactions contemplated hereby and thereby in accordance with the terms hereof and thereof, will not violate, or conflict with, or result in a material breach of any other party thereto is in breach or violation provision of, or constitute a material default under(or an event that, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute a material breach or violation default) under, or result in the termination or in a right of termination or cancellation of, or default accelerate the performance required by, or result in the triggering of any payment obligations under, or result in the creation of any Encumbrance upon any of the assets or properties of the Company or its Subsidiaries under, or result in being declared void, voidable, or without further binding effect, or result in any other modification of or trigger any right or obligation under, any Company Material Contract or provision thereof.
(d) Except as set forth on Schedule 5.18(d) of the Company Disclosure Schedule, no consent of any party to a Company Material Contract is required in connection with the execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the Transactions.
(iiie) True, complete and accurate copies (or, as to oral Contracts, written summaries of the terms), of the Company Material Contracts entered into on or prior to the Company’s Knowledgedate hereof have been provided or made available to Parent and true, complete and accurate copies (or, as to oral Contracts, written summaries of the terms) of any Company Material Contracts entered into after the date hereof and its Subsidiaries have not received any written claim prior to or notice of default, termination on the Closing Date will be provided or cancellation under any such Material Contractmade available to Parent promptly after being so entered into.
Appears in 2 contracts
Samples: Merger Agreement (Endocare Inc), Merger Agreement (Healthtronics, Inc.)
Material Contracts. (ai) Except for this Agreement Section 5.1(i)(i) of the Disclosure Schedules sets forth a true and except for Contracts filed accurate list of each Contract (other than purchase orders issued by Seller to a Third Party that are ancillary to another written Contract with the same Third Party and that do not constitute an Assumed Liability) in effect as exhibits to the Company SEC Reports filed prior to of the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries Agreement to which Seller is a party to or which was entered into by or on behalf of Seller, or by which any of the Acquired Assets is bound by:in the following categories (the “Material Contracts”):
(iA) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20establishing a joint venture or collaboration, co-F under the Exchange Act;
(ii) any Contract involving the payment promotion or receipt of amounts by the Company or any of its Subsidiarieslike arrangement, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing with another Person of profits, losses, costs costs, royalties, milestone payments, or liabilities by Liabilities of Seller relating to the Company Acquired Assets or the Development, manufacture, or Commercialization of any Compound or Product, including the conduct of its Subsidiaries with any third partyclinical trials;
(ivB) any Contract that limits containing covenants prohibiting or limiting the right to compete or engage in any material respect the ability aspect of the Company Product Operations or any of its Subsidiaries prohibiting or any of their respective employees restricting Seller’s ability to compete in any material line of business or conduct the Product Operations with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholegeographical area;
(vC) any material Contract entered into after June 30, 2011 granting most favored nation or not yet consummated, for the acquisition exclusive rights relating to any Compound or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (Product to any other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(viD) any Contract between pursuant to which Seller has obtained or among granted any Intellectual Property Rights included in the Company Acquired Assets (or that would have been included in the Acquired Assets but for such Contract), including any covenant not to enforce or assert, including any existing license agreement relating to any Compound or Product or the Product Operations and each other Contract under which Seller is a licensor or licensee of any Intellectual Property Rights relating to any Compound or Product or the Product Operations other than any of its Subsidiariesthe following entered into in the Ordinary Course of Business and, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other handin each case, that involves payments, taken as whole, that is material are not Acquired Business Contracts and are deemed Excluded Liabilities: (i) Nondisclosure Agreements; (ii) services agreements containing non-exclusive licenses to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made Intellectual Property Rights included in the ordinary course Acquired Assets for the sole purpose of business, which are material to the Company a service provider performing services for or on behalf of Seller; (iii) agreements with clinical investigators and its Subsidiaries, taken as a whole, or clinical sites for the conduct of their respective businessesa clinical study, which study is complete or substantially complete at the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed relevant clinical sites as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) assignment agreements with employees, except as would including proprietary information and invention assignment agreements with employees;
(E) any Contract under which Seller pays or receives milestone or royalty payments relating to any Compound or Product or any Product IP;
(F) any Contract relating to the creation of Liens on any Acquired Assets or the guarantee of the payment of Liabilities or performance of obligations of any other Person by Seller relating to any Compound or Product or any Acquired Assets;
(G) any Contract entered into by Seller or any of its Affiliates in settlement of any Legal Proceeding or other dispute relating to the Acquired Assets or the Product Operations, including the conduct of any clinical trials;
(H) any Contract that limits Seller’s ability to make generally available any versions of any Compound or Product developed by or for Seller;
(I) any Contract for the research or Development of any Compound or Product, other than any of the following entered into in the Ordinary Course of Business and, in each case that are not have a Company Material Adverse Effect, Acquired Business Contracts and are deemed Excluded Liabilities: (i) each Material Contract is a legalstandalone indemnity arrangements with clinical trial sites or clinical trial investigators; (ii) powers of attorney, valid letters of delegation, declarations and binding obligation similar instruments executed by Seller in connection with the regulatory and ethics committee submissions and data processing activities for clinical studies outside of the Company U.S. (other than local representative agreements and legal representative agreements or its Subsidiaries party thereto similar arrangements for local representation entered into with a contract research organization or similar service provider); (iii) Nondisclosure Agreements; (iv) licenses to commercially available software or cloud or software as a service agreements; and (v) service agreements with quality assurance auditors, meeting planners, Third Parties providing meeting support services, and non-physician advisory board participants (i.e. nurse advisors);
(J) any Contract for the development, manufacture, supply, packaging, labeling, distribution, analytical testing, or storage of the active pharmaceutical ingredients and other raw materials for any Compound or Product, and related quality agreements;
(K) any Contract for the ongoing or planned analytical testing or storage of biological specimens collected from subjects participating in clinical trials of any Compound or Product;
(L) any Contract for the distribution, promotion, marketing, reselling or other Commercialization of any Compound or Product;
(M) any Contract for the maintenance of the safety database for any Compound or Product, and any safety data exchange agreements or pharmacovigilance agreements related to any Compound or Product;
(N) any Contract with any Governmental Authority relating to any Compound or Product or any of the Acquired Assets, other than clinical trial agreements and related ancillary agreements with public institutions; and,
(O) any other Contract that is material to the Company’s KnowledgeDevelopment, the manufacture or sale of any Compound or Product, in each case, as currently conducted by Seller, other parties theretothan any Contract relating to (i) real property, (ii) neither employees, or employee compensation or benefit matters, including any Employee Benefit Plan, (iii) indebtedness, other than indebtedness associated with any Lien on any Acquired Asset, (iv) general administration expenses, or (v) insurance.
(ii) All of the Company nor Material Contracts are valid and binding agreements of Seller, enforceable in accordance with their terms, subject to the Enforceability Exception. Other than Material Contracts entered into on behalf of Seller, Seller has made available or delivered to Purchaser a correct and complete copy of each written Material Contract. Seller is not in material breach or material default of any of its Subsidiaries northe Material Contracts or Nondisclosure Agreements, and no event has occurred that with notice or lapse of time, or both, would constitute a material default by Seller under any Material Contract. To the Knowledge of Seller, no other party to a Material Contract is in material breach or material default of such Material Contract and no event has occurred that with notice or lapse of time, or both, would constitute a material default by such other party under any Material Contract or Nondisclosure Agreement. No party has repudiated in writing or, to the Company’s KnowledgeKnowledge of Seller, otherwise provided notice of its intention to repudiate any provision of a Material Contract or Nondisclosure Agreement. Seller has not given to or received from any other party thereto is in Person any written, or to the Knowledge of Seller other, notice regarding any material violation or breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and Nondisclosure Agreement.
(iii) As of the date hereof, (A) the Liabilities of Seller relating to the Company’s KnowledgeIQVIA Agreement are $3,800,000, which amount is net of all deposits (including the Company deposit referenced in clause (B)), advances and its Subsidiaries have not received any written claim or notice prepayments, and (B) Seller has a credit available under the IQVIA Agreement in an amount equal to $2,480,000.
(iv) Section 5.1(i)(iv) of default, termination or cancellation the Disclosure Schedules sets forth an accurate and complete list of all outstanding accrued trade payables under any such Material Contractthe Acquired Business Contracts as of the date hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Immunome Inc.), Asset Purchase Agreement (Ayala Pharmaceuticals, Inc.)
Material Contracts. (a) Except for this Agreement those agreements and except for Contracts other documents filed as exhibits or incorporated by reference to Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 or filed or incorporated in any of its other Company SEC Reports filed since January 1, 2010 and prior to the date hereof or as Previously Disclosed, neither Company nor any of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or bound by:
understanding (whether written or oral) (each, whether or not filed with the SEC, a “Material Contract”): (i) any Contract that would be required to be filed by is a “material contract” within the Company pursuant to meaning of Item 4 601(b)(10) of the Instructions to Exhibits of Form 20SEC’s Regulation S-F under the Exchange Act;
K; (ii) that contains a non-compete or client or customer non-solicit requirement or any Contract involving other provisions that materially restricts the payment conduct of, or receipt the manner of amounts conducting, any line of business of Company or any of its affiliates (or, upon consummation of the Merger, of Purchaser or any of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions; (vi) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Company or any of its Subsidiaries, ; (vii) that limits the payment of dividends by Company or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
; (iiiviii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any material partnership or joint venture contractswith any third parties, strategic cooperation, partnership arrangements except in each case that relate to merchant banking investments by the Company or other agreements outside its Subsidiaries in the ordinary course of business involving a sharing of profitsbusiness; (ix) that relates to an acquisition, lossesdivestiture, costs merger or liabilities similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect; (x) that provides for payments to be made by the Company or any of its Subsidiaries with upon a change in control thereof; (xi) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $200,000 per annum (other than any third party;
(iv) any Contract that limits in any material respect the ability of the such contracts which are terminable by Company or any of its Subsidiaries on 60 days or less notice without any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital required payment or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiariesconditions, on the one hand, and any of their respective Affiliates (other than the condition of notice); (xii) that grants to a person any right in Company Owned Intellectual Property or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material grants to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director a license to Company Licensed Intellectual Property (excluding licenses to shrink-wrap or executive officer of click-wrap software), in each case that involves the Company or any Person beneficially owning five percent payment or more of the outstanding Shares required to be disclosed pursuant to Item 7B than $200,000 per annum or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and conduct of the businesses of the Company; (xiii) to which any affiliate, officer, director, employee or consultant of such party or any of its Subsidiaries is a party or beneficiary (B) the value of the outstanding receivables due except with respect to the Company loans to, or deposit or asset management accounts of, directors, officers and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made employees entered into in the ordinary course of business, which are business and in accordance with all applicable regulatory requirements with respect to it); or (xiv) that is otherwise material to the Company or any Subsidiary of the Company or their financial condition or results of operations. Company has Previously Disclosed or made available to Purchaser prior to the date hereof true, correct and its Subsidiaries, taken as a whole, or the conduct complete copies of their respective businesses, or the absence of which would have a Company each Material Adverse Effect. Each such Contract described in clauses Contract.
(i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Each Material Contract is a legal, valid and legally binding obligation agreement of the Company or one of its Subsidiaries party thereto Subsidiaries, as applicable, and, to the Knowledge of Company’s Knowledge, the other parties counterparty or counterparties thereto, is enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception) and is in full force and effect, (ii) Company and each of its Subsidiaries has duly performed all material obligations required to be performed by it prior to the date hereof under each Material Contract, (iii) neither the Company nor any of its Subsidiaries norSubsidiaries, and, to the Knowledge of Company’s Knowledge, any other party thereto counterparty or counterparties, is in breach or violation of, or default under, of any provision of any Material Contract Contract, and (iv) no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orcondition exists that constitutes, to the Company’s Knowledge, the action or inaction of any third party, that with after notice or lapse of time or both would constitute both, will constitute, a breach or breach, violation of, or default under, on the part of Company or any Material Contract and (iii) to the Company’s Knowledge, the Company and of its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract or provide any party thereto with the right to terminate such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (West Coast Bancorp /New/Or/), Merger Agreement (Columbia Banking System Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as Section 3.15(a) of the date hereof, none Disclosure Letter lists the following types of Contracts to which the Company or its Subsidiaries any Company Subsidiary is a party or any of their respective assets are bound (such Contracts as are required to or bound by:be set forth in Section 3.15(a) of the Disclosure Letter being the “Material Contracts”):
(i) any Contract that would be required each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) with respect to be filed by the Company pursuant to Item 4 of and the Instructions to Exhibits of Form 20-F under the Exchange ActCompany Subsidiaries;
(ii) any Contract involving the payment all Contracts evidencing indebtedness for borrowed money, whether as borrower or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)lender;
(iii) any material all joint venture contractsventure, partnership, strategic cooperation, partnership arrangements alliance and business acquisition or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by divestiture Contracts under which the Company or a Company Subsidiary has any of its Subsidiaries with any third partymaterial obligation;
(iv) all Contracts relating to issuances of securities of the Company or any Contract Company Subsidiary (other than the Company Stock Awards);
(v) all Contracts with any Governmental Authority to which the Company or any Company Subsidiary is a party and that limits in any are material respect to the business and operations of the Company and the Company Subsidiaries, taken as a whole;
(vi) all Contracts that materially limit, or purport to materially limit the ability of the Company or any of its Subsidiaries or any of their respective employees Company Subsidiary to compete in any material line of business or with any Person person or entity or in any geographic area or during any period of time time;
(vii) all employment, consulting, change in a manner control, “golden parachute,” severance or termination Contracts (in each case with respect to which the Company or any Company Subsidiary has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company or any Company Subsidiary, (y) member of the Company Board or the board of directors of any Company Subsidiary or (z) employee providing for an annual base salary in excess of $100,000;
(viii) all Contracts providing for indemnification or any guaranty by the Company or any Company Subsidiary, in each case that is material to the Company and its the Company Subsidiaries, taken as a whole, other than any guaranty by the Company or a Company Subsidiary of any of the obligations of the Company or Company Subsidiary;
(vix) any material Contract entered into after June 30, 2011 all Contracts relating to the disposition or not yet consummated, for the acquisition or dispositionacquisition, directly or indirectly (including by mergermerger or otherwise), consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among by the Company or any of its Subsidiaries, on the one hand, and any Company Subsidiaries after the date of their respective Affiliates this Agreement of assets with a fair market value in excess of $250,000;
(other than x) all material Contracts that obligate the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its SubsidiariesSubsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(viixi) any Contract between all Contracts that prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries and any director or executive officer the Company Subsidiaries, prohibit the pledging of the capital stock of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B Company Subsidiaries or Item 19 prohibit the issuance of Form 20-F under any guarantee by the Exchange Act;
(viii) Company or any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ixxii) all other Contracts under which the Company or any other contracts of the Company Subsidiaries is obligated to make payments or incur costs in excess of $500,000 in any year and agreementswhich are not otherwise described in clauses (i)–(xi) above. The Company has made available to Parent correct and complete copies of all Material Contracts, whether or including any amendments thereto. Except as expressly described in Section 3.15(a), Material Contracts shall not made include (A) Insurance Contracts issued by any Company Subsidiary in the ordinary course of business, which are material to (B) Reinsurance Contracts (whether assumed or ceded) entered into by a Company Subsidiary in the ordinary course of business, (C) Contracts between the Company or any Company Subsidiary, on one hand, and its Subsidiariesany broker, taken as managing general underwriter or managing general agent, on the other hand, entered into in the ordinary course of business and (D) Contracts between the Cost Management Subsidiary and a wholerecipient of, or consultant or employee for, medical and indemnity care cost management services, entered into in the conduct ordinary course of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”business.
(b) As of the date of this Agreement, except Except as would not have constitute a Company Material Adverse EffectEffect or as set forth in Section 3.15(b) of the Disclosure Letter, (i) each Material Contract is a legal, valid and binding obligation agreement, in full force and effect and enforceable against the Company or applicable Company Subsidiary in accordance with its terms, (ii) none of the Company or its Subsidiaries party thereto andany Company Subsidiary or, to the knowledge of the Company’s Knowledge, the other parties thereto, (ii) neither any third party has received any claim of default under or cancellation of any Material Contract and none of the Company nor or any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto Company Subsidiary is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, Contract; (iii) to the Company’s Knowledgeknowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a no other party is in breach or violation of, or default under, any Material Contract Contract; and (iiiiv) neither the execution of this Agreement nor the consummation of the Transactions shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the Company’s Knowledge, material rights of the Company and its Subsidiaries have not received or any written claim or notice of default, termination or cancellation Company Subsidiary under any such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (SeaBright Holdings, Inc.), Merger Agreement (Enstar Group LTD)
Material Contracts. (a) Except for this Agreement Agreement, the Company Benefit Plans and except for Contracts agreements filed as exhibits to the Company SEC Reports filed prior to Documents, as of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness that (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiA) expressly imposes any material joint venture contracts, strategic cooperation, partnership arrangements restriction on the right or other agreements outside the ordinary course ability of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries to compete with any third partyother person or acquire or dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $10 million;
(iv) any joint venture, partnership or limited liability company agreement or other similar Contract that limits in relating to the formation, creation, operation, management or control of any material respect joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or any declare or pay dividends in respect of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiariescapital stock, taken as a whole;
(v) any material Contract entered into after June 30partnership interests, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital membership interests or other equity interests of another Personinterests, as the case may be;
(vi) any acquisition Contract between that contains “earn out” or among the Company other contingent payment obligations, or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company remaining indemnity or any of its Subsidiaries), on the other handsimilar obligations, that involves payments, taken as whole, that is material could reasonably be expected to result in payments after the Company and its Subsidiaries;
(vii) any Contract between date hereof by the Company or any of its Subsidiaries and any director or executive officer in excess of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries$20 million; and
(ixvii) any other contracts and agreements, whether material lease or not made in the ordinary course of business, which are material sublease with respect to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”Leased Real Property.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Energy Transfer Partners, L.P.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to As of the date of this Agreement, as of the date hereof, none of the Company or and its Subsidiaries is are not a party to or bound byby any Contract:
(i) any Contract that would be required to be filed by the Company as a material contract pursuant to Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC;
(ii) that is or creates a Partnership with any Contract involving other Person that is material to the payment Company and its Subsidiaries, taken as a whole, or receipt that relates to the formation, operation, management or control of amounts by any such Partnership,
(iii) (A) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement, in each case, providing for indebtedness in excess of $100,000,000 (other than agreements between the Company and any wholly-owned Subsidiary or between wholly-owned Subsidiaries) or pursuant to which the Company or any of its SubsidiariesSubsidiaries guarantees any material indebtedness of any other Person, (B) that materially restricts the Company’s or relating any Subsidiary’s ability to material incur Indebtedness or guarantee the Indebtedness of others, (C) that grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any Indebtedness solely property or asset of the Company or its Subsidiaries that taken as a whole is material to the Company and its Subsidiaries, taken as a whole, or (D) that provides for or relates to any interest rate derivatives, currency derivatives or other derivatives;
(iv) that is a written Contract (other than this Agreement) for the acquisition of any Person, assets or business or sale of any of its Subsidiaries, assets or businesses after the date hereof, in each case with a fair market value or purchase price (including assumption of debt) in excess of $50,000,000 (other than intercompany agreements);
(v) under which the Company and its Subsidiaries have made or received payments in excess of $50,000,000 in calendar year 2014 (other than payments between the Company and any of its wholly-owned Subsidiaries);
(iiivi) under which any material joint venture contractsthird party is authorized to sell, strategic cooperationsublicense, partnership arrangements lease, distribute, market or take orders for the Company Products as of the date of this Agreement with the Company’s top ten (10) customers by revenue in 2014;
(vii) with respect to the acquisition or disposition of any Person, assets or business (whether by merger, amalgamation, consolidation or other agreements outside the ordinary course business combination, sale of business involving a sharing assets, sale of profitsshare capital, losses, costs tender offer or liabilities by exchange offer or similar transaction) pursuant to which the Company or any of its Subsidiaries with has (x) continuing indemnification obligations or (y) any third party“earn-out” or similar contingent payment obligations, in each case, in excess of $50,000,000 (other than any Contract that provides for the acquisition of inventory, raw materials or equipment in the ordinary course);
(ivviii) that contains a right of first refusal, first offer or first negotiation or a call or put right with respect to any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner asset that is material to the Company and its Subsidiaries, taken as a whole;
(vix) that prohibits or restricts the payment of dividends or distributions in respect of the Company’s shares or capital stock;
(x) that is a purchase or sale agreement with any material Contract entered into after June 30, 2011 Significant Customer or not yet consummated, Significant Supplier for purchases or sales in excess of $50,000,000 in the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets prior fiscal year (other than assets purchased purchase orders issued in the ordinary course of business that do not materially modify the terms of any underlying Contract pursuant to capital expenditures) or share capital or other equity interests of another Personwhich such purchase orders are issued);
(vixi) any Contract that is between or among the Company or any of its Subsidiaries, on the one hand, and any of their the Company’s or its Subsidiaries’ respective Affiliates directors or officers or shareholders who own five percent (5%) or more of the Company Common shares, other than (i) any employee agreements and agreements entered into under any U.S. Benefit Plan or Foreign Benefit Plan, (ii) transactions conducted on an arms’ length basis or (iii) any agreements with consideration of less than $120,000;
(xii) that is a settlement, conciliation or similar agreement (x) with any Governmental Entity which materially (i) restricts or imposes material obligations upon the Company or any its Subsidiaries or (ii) materially disrupts the business of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
Subsidiaries as currently conducted, or (viiy) any Contract between which would require the Company or any of its Subsidiaries and any director or executive officer to pay consideration of more than $50,000,000 after the Company or any Person beneficially owning five percent or more date of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;this Agreement; or
(viiixiii) with any Contract (other than Contracts granting Company Options) giving Governmental Entity for the other party purpose of fulfilling a contract or order from such Governmental Entity as the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as wholeultimate customer, that is material to the Company and its Subsidiaries or (B) the value conduct of the outstanding receivables due to business of the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiariescurrently conducted, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above i)-(xiii), together with each material License-In Agreement and each such material Contract that would be a Material Contract but for relates to Intellectual Property license rights or the exception operation of being filed as an exhibit to the business of the Company SEC Reports or its Subsidiaries, including in connection with the sale of Company Products, in each case, as of the date of this Agreement (other than non-exclusive, “off-the-shelf” software licenses with annual fees of less than $25,000,000 entered in the ordinary course of business), is referred to herein as a “Material Contract”.” True and correct copies of each Material Contract (and all material amendments, schedules and exhibits thereto) or, if applicable, form of Material Contract, have been publicly filed as exhibits to the Company SEC Reports or otherwise made available to Parent.
(b) As of the date of this Agreement, except Except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is enforceable against the Company in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect and (ii) the Company or its Subsidiaries, on the one hand, and, to the Knowledge of the Company, each other party to each Material Contract, on the other hand, have performed all obligations required to be performed by it under such Material Contract in all material respects and, to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a legalviolation or breach; (B) give any Person the right to accelerate the maturity or performance of any Material Contract or (C) give any Person the right to cancel, valid and binding obligation terminate or modify any Material Contract.
(c) As of the date hereof, the Company is not a party to or bound by any Contract that (i) contains any provisions restricting the right of the Company or any of its Subsidiaries party thereto andmaterially (A) to compete or transact in any business or with any Person or in any geographic area, (B) to the Company’s Knowledgeacquire any material product or other asset or service from any other Person, the or (C) to develop, sell, supply, distribute, support or service any material product or technology or other parties theretoasset to or for any other Person, (ii) neither grants exclusive rights to license, market, sell or deliver any Company Product or that contains any “most favored nation” or similar provisions in favor of the Company nor other party with total Contract value in excess of $50,000,000 in the prior fiscal year, or (iii) other than Contracts with standards setting bodies or organizations, consortia or similar entities entered into in the ordinary course of business, following the Closing, would result in any party to such Contract or any other party obtaining a license, right to use or any other claim or right in respect of any Intellectual Property of Parent and any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, excluding the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractSubsidiaries).
Appears in 2 contracts
Samples: Merger Agreement (NXP Semiconductors N.V.), Merger Agreement (Freescale Semiconductor, Ltd.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 3.17(a) of the Company SEC Reports filed prior to Disclosure Schedule sets forth a list (in effect as of the date of this Agreement, as ) of all of the date hereof, none Contracts of the Company or its Subsidiaries is a party which are material to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 business and/or assets of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its SubsidiariesSubsidiaries (the “Material Contracts”), including each of the following Contracts (and each amendment or relating modification thereto), excluding purchase orders and sales orders made in the ordinary course of business consistent with past practices:
(i) Benefit Plan listed or required to material Indebtedness (other than any Indebtedness solely between be listed on Section 3.13(b) of the Company and any Disclosure Schedule;
(ii) employment, consulting, severance, retention, termination, parachute or change-of-control Contract, arrangement or understanding listed or required to be listed on Section 3.13(a) of its Subsidiaries)the Company Disclosure Schedule;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements collective bargaining agreement or other agreements outside the ordinary course Contract of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third partylabor union;
(iv) Contract under which the Company or any of its Subsidiaries has advanced or loaned or agreed to advance or loan to any other Person amounts exceeding $10,000 in the aggregate;
(v) Contract that limits in any material respect the ability of the Company or any of its Subsidiaries relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any of their respective employees to compete in any material line of business asset or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) group of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vi) Contract by which the Company or any of its Subsidiaries guarantees, endorses or otherwise becomes or is contingently liable upon the Liability of any other Person (other than by endorsements of instruments in the ordinary course of collection), or guaranties of the payment of dividends or other distributions upon the shares of any other Person;
(vii) any Contract between the Company or any of its Subsidiaries and with any director Significant Customer;
(viii) Contract under which the Company or executive officer one of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other Person, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $50,000;
(ix) Contract under which the Company or one of its Subsidiaries is lessor of or permits any other Person to hold or operate any property, real or personal, owned or controlled by the Company or one of its Subsidiaries other than immaterial rights of way, easements, covenants or similar rights to real property;
(x) Contract of the Company or any Person beneficially owning five percent of its Subsidiaries that is a settlement, conciliation or more similar agreement requiring payment as of or after the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 execution date of Form 20-F under the Exchange Actthis Agreement of consideration in excess of $25,000;
(viiixi) any material Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where Company or any of its Subsidiaries relating to any intangible property (Aincluding any Intellectual Property) such Contract requires or any payment, taken as whole, that is material other agreements affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any Intellectual Property;
(xii) warranty agreement of the Company or any of its Subsidiaries relating to the services rendered by it;
(xiii) Contract of the Company and or any of its Subsidiaries with a term of more than twelve (12) months which is not terminable by the Company or one of its Subsidiaries upon less than thirty (B30) days’ notice without material penalty and involves a consideration in excess of $50,000 per Contract annually;
(xiv) Contract prohibiting the value Company or any of its Subsidiaries from freely engaging in business in any jurisdiction in the world in any material respect;
(xv) Contract of the outstanding receivables due Company or any of its Subsidiaries with respect to capital expenditures in excess of $25,000;
(xvi) Medicare or Medicaid Contract to which the Company and or any of its Subsidiaries under such Contractis a party, taken as whole, that is material or to which any of their respective assets or properties are subject;
(xvii) Contract of the Company and or any of its SubsidiariesSubsidiaries with any Governmental Authority; and
(ixxviii) any other contracts and agreementspower of attorney, whether proxy or not made in the ordinary course similar Contract of business, which are material to the Company and or any of its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As The Company has provided to Parent true and complete copies of each written Contract set forth in Section 3.17(a) of the date Company Disclosure Schedule and a written summary of this Agreement, except the material terms of each oral Contract set forth in Section 3.17(a) of the Company Disclosure Schedule. Except as would not have a disclosed in Section 3.17(b) of the Company Material Adverse EffectDisclosure Schedule, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries noris, nor to the Company’s Knowledgeknowledge, is any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or in material default under, under any Material Contract and (iiiii) there has not occurred any event that, with the lapse of time or giving of notice or both, would constitute a material default. All Material Contracts to which the Company or any of its Subsidiaries is a party, or by which any of their respective material assets are bound, are valid and binding, in full force and effect and enforceable against the Company or any such Subsidiary, as the case may be, and to the Company’s Knowledgeknowledge, the other parties thereto in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally and to the general principles of equity.
(c) Except as disclosed in Section 3.17(c) of the Company and Disclosure Schedule, neither the Company nor any of its Subsidiaries have not received has any written claim Liabilities relating to the purchase or notice sale of defaultany business, termination entity or cancellation assets, including under any such Material Contractescrow, indemnity or security agreement (or similar agreement).
Appears in 2 contracts
Samples: Merger Agreement (National Home Health Care Corp), Merger Agreement (National Home Health Care Corp)
Material Contracts. (ai) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to Reports, as of the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(iA) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $10 million without regard to percentage voting or economic interest;
(B) any Contract (other than among direct or indirect wholly owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $1 million;
(C) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Securities Act, excluding any Benefit Plan;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(ivD) any Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries, (III) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (IV) prohibits or limits in any material respect the ability right of the Company or any of its Subsidiaries to make, sell or distribute any of their respective employees to compete in any material line of business products or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeservices;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(viE) any Contract between or among to which the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than Subsidiaries is a party containing a standstill or similar agreement pursuant to which the Company has agreed not to acquire the assets or securities of the other party or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its SubsidiariesAffiliates;
(viiF) any Contract between the Company or any of its Subsidiaries and any Affiliate thereof, including any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange ActShares, excluding any Benefit Plan;
(viiiG) any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for any such Contract that is (i) not material to the Company or any of its Subsidiaries and (ii) entered into in the ordinary course of business;
(H) any material Contract relating to the license of Intellectual Property (excluding commercial off-the-shelf or shrink wrap software that has not been modified or customized);
(I) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $1 million; and
(J) any Contract (other than Contracts granting Company Options) giving a Contract described in one of the other party the right to terminate such Contract as a result of provisions in this Agreement or the consummation of the Merger where (ASection 5.1(j)) such Contract requires any payment, taken as whole, that which is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each each such Contract described in clauses (iA) through (ix) above J), together with all exhibits and each schedules to such Contract that Contracts and those Contracts which would be a Material Contract Contracts but for the exception of being filed as an exhibit exhibits to the Company SEC Reports Reports, is referred to herein as a “Material Contract”).
(bii) As Each of the date Material Contracts is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of this Agreementthe Company, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Material Contract . There is a legal, valid and binding obligation of no default under any such Contracts by the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or the lapse of time or the giving of notice or both would constitute a breach default thereunder by the Company or violation ofits Subsidiaries, in each case except as would not, or default underwould not reasonably be expected to, any individually or in the aggregate, have a Company Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (Bowne & Co Inc)
Material Contracts. (a) Except for this Agreement as set forth on Schedule 3.12(a) and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreementwould constitute an Excluded Asset or Excluded Liability, as of the date hereof, none neither Seller nor any Subsidiary of the Company or its Subsidiaries either Seller is a party to to, nor is either Seller, any Subsidiary of a Seller or any of their respective assets bound by:, any Contract (each, a "Material Contract"):
(i) relating to (A) the employment (as an employee or consultant) or termination of employment of any Contract that would Person by each Seller or any Subsidiary of either Seller which may not be terminated without penalty or other obligation (other than any severance payments required by law) by such Seller or, as the case may be, such Subsidiary within twelve (12) months from the date hereof, or (B) the payment to be filed any Person by the Company pursuant to Item 4 each Seller or any Subsidiary of the Instructions to Exhibits either Seller of Form 20-F under the Exchange Actany bonus award which is contingent on a sale of such Seller, any Subsidiary of such Seller or any of their respective assets;
(ii) which contains material restrictions with respect to payment of dividends or any Contract involving the payment or receipt other distribution in respect of amounts by the Company its capital stock;
(iii) relating to Indebtedness of each Seller or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect materially limiting the ability of the Company either Seller or any Subsidiary of its Subsidiaries a Seller to manufacture, sell or distribute any of their respective employees product, to compete engage in any material line of business or to compete with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholePerson;
(v) with any material Contract entered into after June 30, 2011 labor union or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personany employee organization;
(vi) any Contract between or among the Company pursuant to which either Seller or any Subsidiary of its Subsidiaries, on the one hand, and a Seller is entitled or obligated to acquire any assets with a value in excess of their respective Affiliates ($250,000 from a third party other than the Company or any purchase of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made inventory in the ordinary course of business;
(vii) in the form of a performance, payment, and other bonds issued by a Seller that are guaranteed by any Affiliate of such Seller (the "Bonds"); or
(viii) pursuant to which are material either Seller or any its Subsidiary of a Seller is obligated to the Company and its Subsidiaries, taken as provide goods or services to another Person with a whole, or the conduct total Contract value in excess of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”$2,000,000.
(b) As of the date of this Agreement, Except as set forth in Schedule 3.12(b) and except as otherwise would not reasonably be expected to have a Company Material Adverse Effect, Effect on the Business:
(i) each there is no default under any Material Contract is either by a legal, valid and binding obligation Seller or any Subsidiary of the Company or its Subsidiaries party thereto anda Seller or, to the Company’s KnowledgeKnowledge of the Sellers, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, by any other party thereto is in breach or violation ofthereto, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or the lapse of time or the giving of notice or both would constitute a breach default thereunder by a Seller or violation ofany Subsidiary of a Seller or, or default underto the Knowledge of the Sellers, any other party;
(ii) no party to any Material Contract and has given written notice to a Seller or any Subsidiary of a Seller of or made a claim in writing against a Seller or any Subsidiary or a Seller with respect to any breach or default thereunder;
(iii) to the Company’s KnowledgeKnowledge of the Sellers, the Company and its Subsidiaries have not received no party to any written claim Material Contract intends to cancel, withdraw, modify or notice of default, termination or cancellation under amend any such Material Contract;
(iv) with respect to each Material Contract or Bid, (A) each Seller or its Subsidiaries has complied in all material respects with all material terms and conditions of such Material Contract or Bid, including all clauses, provisions and requirements incorporated expressly, by reference or by operation of law therein; (B) each Seller or its Subsidiaries has complied in all material respects with all requirements of any statute, rule, regulation or order pertaining to such Material Contract or Bid; (C) all representations and certifications executed, acknowledged or set forth in or pertaining to such Material Contract or Bid were current, accurate and complete in all material respects as of their effective date, and each Seller or its Subsidiaries has complied in all material respects with all such representations and certifications, including, without limitation, those required by or relating to the Foreign Corrupt Practices Act, the Cost Accounting Standards, and the regulations and rules relating to the submission of progress payment requests; (D) no Governmental Authority nor any prime contractor, subcontractor or other Person has notified either Seller or their Subsidiaries in writing that either Seller or its Subsidiaries has breached or violated any statute, rule, regulation, certification, representation, clause, provision or requirement; (E) no termination for convenience, termination for default, cure notice or show cause notice has been issued (other than to the extent satisfied, cured or withdrawn); (F) no cost incurred by either Seller or its Subsidiaries has been disallowed in respect of any such Material Contract (in each case, other than costs not exceeding one percent (1%) of the value of the respective Material Contract); and (G) no money due to either Seller or its Subsidiaries has been withheld, reduced or set-off in respect of any such Material Contract (in each case, other than monies not exceeding one percent (1%) of the value of the respective Material Contract);
(v) there exist (A) no financing arrangements with respect to the performance of any Client Contract; (B) to the Knowledge of the Sellers, no material outstanding claims or requests for equitable or financial adjustments against the Sellers or their Subsidiaries, either by any party to a Material Contract, any Governmental Authority or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Material Contract or Bid; (C) to the Knowledge of the Sellers, no facts that are known by the Sellers upon which such a claim may be validly based in the future; and (D) to the Knowledge of the Sellers, no material disputes between either Seller or its Subsidiaries and any party to a Material Contract, any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Client Contract; and
(vi) the revenues and profits associated with each of the Client Contracts have been recorded in accordance with GAAP, and there exists no uncompleted Client Contract as to which the Company's estimated cost at completion (including material and labor costs, other direct costs, overheads, and engineering costs whether incurred or yet to be incurred) as of the Balance Sheet Date exceeds the aggregate contract revenue recorded or to be recorded under such Client Contract through completion.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tetra Tech Inc), Asset Purchase Agreement (Foster Wheeler LTD)
Material Contracts. (a) Except for this Agreement and except for Contracts Agreement, the Company Benefit Plans, agreements filed as exhibits to the Company SEC Reports filed prior to Documents or as set forth on the date applicable subsection of this AgreementSection 3.18(a) of the Company Disclosure Schedule, as of the date hereof, none neither Company nor any of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving that (A) imposes any restriction on the payment right or receipt ability of amounts by the Company or any of its SubsidiariesSubsidiaries to compete with any other person or in any geographic area or acquire or dispose of the securities of another person, or relating to material Indebtedness (B) contains an exclusivity or other than any Indebtedness solely between clause that restricts the operations of the business of Company and any of its Subsidiaries)Subsidiaries in a material manner;
(iii) any material joint venture contractsmortgage, strategic cooperationcredit agreement, partnership arrangements note, debenture, indenture, security agreement, pledge, or other agreements outside the ordinary course agreement or instrument evidencing indebtedness for borrowed money or any guarantee of business involving a sharing such indebtedness of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with in an amount in excess of $5,000,000, except any third partytransaction among Company and its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries;
(iv) any executory Contract that limits provides for the acquisition or disposition of assets, rights or properties with a value in excess of $5,000,000, except any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the transaction among Company and its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries, taken as a whole;
(v) any material joint venture, partnership or limited liability company agreement or other similar material Contract entered into after June 30relating to the formation, 2011 creation, operation, management or not yet consummatedcontrol of any material joint venture, for the acquisition partnership or dispositionlimited liability company, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) any such Contract solely between Company and its Subsidiaries or share capital or other equity interests of another Personamong Company’s Subsidiaries;
(vi) any Contract between expressly limiting or among restricting the ability of Company or any of its Subsidiaries, on the one hand, and any Subsidiaries to make distributions or declare or pay dividends in respect of their respective Affiliates (capital stock, partnership interests, membership interests or other than equity interests, as the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiariescase may be;
(vii) any Contract between the that obligates Company or any of its Subsidiaries and to make any loans, advances or capital contributions to, or investments in, any person other than (A) any loan or capital contribution to, or investment in, (x) Company or one of its Subsidiaries or (y) any person (other than an officer, director or executive officer employee of the Company or any Person beneficially owning five percent of its Subsidiaries unrelated to business travel and other business-related expenses in the ordinary course of business) that is less than $500,000 (with respect to capital contributions and investments) or more $100,000 (with respect to loans) to such person, (B) extensions of credit to customers in the outstanding Shares required to be disclosed pursuant to Item 7B ordinary course of business and consistent with customary trade terms, or Item 19 (C) advancement obligations under any indemnification agreement entered into by Company or any of Form 20-F under the Exchange Actits Subsidiaries;
(viii) any Contract pursuant to which Company or any of its Subsidiaries made aggregate payments of more than $20,000,000 during the 12-month period ended December 31, 2019, except (other than Contracts granting Company Optionsx) giving the other party the right to terminate for any such Contract as a result that may be cancelled by Company or any of this Agreement its Subsidiaries upon notice of 90 days or the consummation of the Merger where less or (Ay) such Contract requires any paymentfor leases, taken as wholesubleases, licenses and occupancy agreements that is material relate to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andLeased Real Property;
(ix) any Contract pursuant to which Company or any of its Subsidiaries generated annual revenues of more than $40,000,000 during the 12-month period ended December 31, 2019;
(x) any Contract that includes any affiliate of Company as a counterparty or third party beneficiary and that would be required to be disclosed under Item 404 of Regulation S-K of the SEC;
(xi) any Contract that contains “earn out” or other contracts contingent payment obligations, that are reasonably expected to result in payments after the date hereof by Company or any of its Subsidiaries in excess of $2,500,000;
(xii) any lease, sublease, license or occupancy agreement with respect to a Company Leased Real Property under which Company or any of its Subsidiaries is a lessee or sublessee and agreementsfor which the annual base rental payments during the 12-month period ended December 31, whether 2019 exceeded $1,750,000, or not made by the terms of such lease or sublease, are reasonably expected to exceed $1,750,000 during the next 12 months; and
(xiii) any Contract relating to material Company Intellectual Property or a material Company IT Asset, excluding (A) non-exclusive licenses to commercially available software with annual expenditures of less than $1,000,000 or (B) non-exclusive rights granted to customers and others in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Transaction Agreement (Borgwarner Inc), Transaction Agreement (Delphi Technologies PLC)
Material Contracts. (a) Except for this Agreement Each Contract required to be filed (or incorporated by reference) as an exhibit to any CCIT II SEC Document filed on or after January 1, 2020 pursuant to Item 601(b)(1), (2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act has been so filed (or incorporated by reference) (such Contracts, together with those Contracts described in Section 4.12(b), “CCIT II Material Contracts”).
(b) Other than the Contracts described in Section 4.12(a) and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, Section 4.12(b) of the CCIT II Disclosure Letter sets forth a true, correct and complete list, as of the date hereof, none of each Contract (or the Company accurate description of principal terms in case of oral Contracts), including all amendments, supplements and side letters thereto, to which CCIT II or its Subsidiaries any CCIT II Subsidiary is a party or by which it is bound or to which any CCIT II Property or bound byother material asset is subject, that:
(i) obligates CCIT II or any Contract that would be required CCIT II Subsidiary to be filed by make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the Company pursuant deposit of other reserves with respect to Item 4 debt obligations) in excess of the Instructions two million five hundred thousand dollars ($2,500,000) and is not cancelable within ninety (90) days without material penalty to Exhibits of Form 20-F under the Exchange ActCCIT II or any CCIT II Subsidiary;
(ii) contains any Contract involving non-compete or exclusivity provisions with respect to any line of business or geographic area that materially restricts the payment or receipt business of amounts by the Company CCIT II or any CCIT II Subsidiary, including upon consummation of its Subsidiariesthe transactions contemplated by this Agreement, or relating to material Indebtedness (other than that otherwise restricts the lines of business conducted by CCIT II or any Indebtedness solely between CCIT II Subsidiary or the Company and geographic area in which CCIT II or any of its Subsidiaries)CCIT II Subsidiary may conduct business;
(iii) obligates CCIT II or any CCIT II Subsidiary to indemnify any past or present directors, officers, or employees of CCIT II or any CCIT II Subsidiary, other than the CCIT II Governing Documents or any equivalent organizational or governing documents of any other CCIT II Subsidiary;
(iv) constitutes (A) an Indebtedness obligation of CCIT II or any CCIT II Subsidiary with a principal amount as of the date hereof greater than fifty million dollars ($50,000,000) or (B) a Contract (including any so called take-or-pay or keepwell agreements) under which (1) any Person (including CCIT II or a CCIT II Subsidiary) has directly or indirectly guaranteed Indebtedness, liabilities or obligations of CCIT II or a CCIT II Subsidiary or (2) CCIT II or a CCIT II Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person (other than CCIT II or another CCIT II Subsidiary);
(v) provides for the pending purchase or sale, option to purchase or sell or other right to purchase, sell, dispose of or ground lease (by merger, by purchase or sale of assets or stock, by lease or otherwise) (other than any right of first refusal or right of first offer) of (A) any real property (including any CCIT II Property or any portion thereof) or (B) any other asset of CCIT II or any CCIT II Subsidiary or equity interests of any Person, in the case of (A) and (B) with a purchase or sale price greater than two million five hundred thousand dollars ($2,500,000);
(vi) constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a swap or other hedging transaction of any type;
(vii) constitutes a loan to any Person (other than a Wholly Owned CCIT II Subsidiary) by CCIT II or any CCIT II Subsidiary;
(viii) sets forth the operational or economic terms of a joint venture, partnership, limited liability company or strategic alliance of CCIT II or any CCIT II Subsidiary with a third party;
(ix) prohibits the pledging of the capital stock of CCIT II or any CCIT II Subsidiary or prohibits the issuance of guarantees by any CCIT II Subsidiary;
(x) contains covenants limiting the ability of CCIT II or any CCIT II Subsidiary to sell, transfer, pledge or otherwise, dispose of any material joint venture contracts, strategic cooperation, partnership arrangements assets or business of CCIT II or any CCIT II Subsidiary;
(xi) contains restrictions on the ability of CCIT II or any CCIT II Subsidiary to pay dividends or other agreements outside distributions, other than the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company CCIT II Governing Documents or any equivalent organizational or governing documents of its Subsidiaries with any other CCIT II Subsidiary;
(xii) has continuing “earn-out” or other similar contingent purchase price payment obligations, in each case that could result in payments, individually or in the aggregate, in excess of two million five hundred thousand dollars ($2,500,000);
(xiii) provides for the management or operation of any of the CCIT II Properties on behalf of CCIT II or any CCIT II Subsidiary by any third party;
(ivxiv) is a lease, sublease, license or other rental agreement or occupancy agreement (written or verbal) which grants any Contract possessory interest in and to any space situated on or in the CCIT II Properties or that limits in any material respect otherwise gives rights with regard to the ability use of the Company CCIT II Properties pursuant to which CCIT II or any CCIT II Subsidiary expects to receive annualized rental income per year in excess of its Subsidiaries or any eight million seven hundred forty thousand dollars ($8,740,000) as of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its SubsidiariesJune 30, taken as a whole2020;
(vxv) is a ground lease under which CCIT II or a CCIT II Subsidiary holds a leasehold interest in the CCIT II Properties or any material Contract entered into after portion thereof;
(xvi) provides a right of first refusal or right of first offer of any real property (including any CCIT II Property or any portion thereof) having annualized straight-line rents as of June 30, 2011 or not yet consummated, 2020 representing greater than 1.0% of CCIT II’s rental revenues for the acquisition or dispositionyear ended December 31, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;2019; or
(vixvii) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where both (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are business consistent with past practice and (B) material to CCIT II and the Company CCIT II Subsidiaries, taken as a whole.
(c) Each CCIT II Material Contract is legal, valid, binding on and its enforceable against CCIT II or the CCIT II Subsidiary that is a party thereto and, to the Knowledge of CCIT II, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as would not, individually or in the aggregate, reasonably be expected to be material to CCIT II and the CCIT II Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above CCIT II and each such Contract that would CCIT II Subsidiary has performed all obligations required to be a performed by it under each CCIT II Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s KnowledgeKnowledge of CCIT II, the each other parties theretoparty thereto has performed all obligations required to be performed by it under such CCIT II Material Contract. None of CCIT II, (ii) neither the Company nor any of its Subsidiaries norCCIT II Subsidiary or, to the Company’s KnowledgeKnowledge of CCIT II, any other party thereto thereto, is in breach or violation of, or default under, any CCIT II Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orthat, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute a violation, breach or default under any CCIT II Material Contract, except where in each case such breach, violation ofor default, individually or in the aggregate, would not reasonably be expected to be material to CCIT II and the CCIT II Subsidiaries, taken as a whole. Neither CCIT II nor any CCIT II Subsidiary has received written notice of any violation or default under, or currently owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any CCIT II Material Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to have a CCIT II Material Adverse Effect.
(d) Since December 31, 2019, (i) neither CCIT II nor any CCIT II Subsidiary has received any written notice of the intention of any party to cancel, terminate, materially change the scope of rights under or fail to renew any CCIT II Material Contract, (ii) no party has exercised, or threatened to exercise, any force majeure or similar provision under any CCIT II Material Contract and (iii) no party has sought to, or threatened to, withhold or otherwise delay amounts payable to the Company’s Knowledge, the Company and its Subsidiaries have not received CCIT II or any written claim or notice of default, termination or cancellation CCIT II Subsidiary under any CCIT II Material Contract as a result of COVID-19 or the COVID-19 Measures (whether or not CCIT II or such Material ContractCCIT II Subsidiary granted any forgiveness or deferral).
(e) Neither CCIT II nor any CCIT II Subsidiary owes any termination, cancellation or other similar fees or any liquidated damages to any third party manager or operator.
Appears in 2 contracts
Samples: Merger Agreement (Cole Office & Industrial REIT (CCIT II), Inc.), Merger Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Material Contracts. (a) Except for this Agreement SCHEDULE 3.13(a) sets forth a true, correct and except for Contracts filed as exhibits complete list of all contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to the which any Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none of the Company Party or its Subsidiaries Subsidiary is a party (or intends to become a party) or bound byto which any of its assets or properties is bound:
(i) under which any Contract that would Company Party or Subsidiary is indemnified for or against any liability in excess of $100,000 or under which any Company Party or Subsidiary is or could be required obligated to be filed by the Company pursuant to Item 4 indemnify any Person in excess of the Instructions to Exhibits of Form 20-F under the Exchange Act$100,000;
(ii) under which any Contract involving the payment Company Party or receipt Subsidiary leases personal property from or to third parties under Capital Leases which involve rental payments of amounts by the Company at least $100,000 per annum or any under operating leases which involve rental payments of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)at least $100,000;
(iii) (A) granting representation, marketing or distribution rights or (B) relating to Intellectual Property (including, without limitation, license, franchise or similar agreements);
(iv) under which any material Company Party or Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of $100,000;
(v) establishing or maintaining any partnership, joint venture contractsor strategic alliance, strategic cooperation, partnership arrangements or which provides for the retention of the services of a third party to locate or identify potential acquisitions of dental practices;
(vi) under which there is or may be imposed a security interest or other agreements Lien on any of its assets, whether tangible or intangible, whose net book value or fair market value is in excess of $100,000 (other than the security interests or Liens granted in favor of the Purchaser and the Senior Agents);
(vii) concerning any confidentiality or non-solicitation obligations entered into outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third partybusiness;
(ivviii) under which any Contract that limits Company Party or Subsidiary is restricted from carrying on its business or any part thereof, or from competing in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person Person;
(ix) with officers, directors, employees, consultants or entity independent contractors of any Company Party or Subsidiary;
(x) resulting in the creation of any geographic area Lien (including any lease notifications) other than a Customary Permitted Lien;
(xi) involving any Affiliates of any Company Party or during Subsidiary;
(xii) under which the consequences of a default or termination could have a Material Adverse Effect;
(xiii) under which any period Company Party or Subsidiary will make aggregate payments to any vendors or other suppliers in excess of time in a manner that is material to $250,000 per annum;
(xiv) under which any Company Party or Subsidiary manages any dental practice, professional corporation or professional association (including, without limitation, the Company Management Agreements), whether or not the financial statements of such practice, corporation or association are consolidated with the financial statements of Parent and its Subsidiaries, taken as and under which any Company Party or Subsidiary is a whole;
(v) party to any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital contract or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material agreement relating to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its SubsidiariesDental Insurance Business; and
(ixxv) any other contracts and agreements, whether or not made entered into in the ordinary course of businessbusiness and not otherwise disclosed on SCHEDULE 3.13
(a) in response to any of the foregoing clauses. All of the contracts, which are material to the Company and its Subsidiariescommitments, taken as a wholelicenses, agreements, obligations or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract arrangements described in clauses (i) through (ixxv) above above, together with the Senior Credit Documents and each such Contract that would be a Material Contract but for all Other Debt Documents, the exception of being filed as an exhibit to real property leases, subleases, licenses and other interests described in SECTION 3.24, whether entered into prior to, on or after the Company SEC Reports is Closing Date, are collectively referred to herein as a “Material Contract”the "MATERIAL CONTRACTS."
(b) As Except as disclosed on SCHEDULE 3.13(a), each Material Contract existing as of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract hereof is a legal, valid and binding obligation of the Company Parties or its Subsidiaries party thereto andSubsidiary that are parties thereto, to on the Company’s Knowledgeone hand, and the other parties thereto, (ii) neither on the other hand, enforceable against each of them in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or similar laws relating to or limiting creditors' rights generally or by equitable principles relating to enforceability, and is in full force and effect. The parties to each Material Contract existing as of the date hereof are in substantial compliance with the terms thereof, and no default or event of default by any Company nor any of its Subsidiaries norParty or Subsidiary or, to the Company’s Knowledgeknowledge of the Company Parties, any other party thereto exists thereunder.
(c) Except as expressly set forth on SCHEDULE 3.13(a), no Company Party or Subsidiary is in breach a party to any contract, commitment, license, agreement, obligation or violation ofarrangement that restricts it from carrying on its business or any part thereof, or default underfrom competing in any line of business or with any other Person.
(d) Each of the Management Agreements entered into by any Company Party or Subsidiary since November 1997 either satisfies the criteria set forth on SCHEDULE 1.1A or is substantially in the form of EXHIBIT X-0, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractX-0 OR D-3.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Interdent Inc), Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 4.11(a) of the Company SEC Reports filed prior to Disclosure Letter lists as of the date of this Agreement, as of and the date hereofCompany has made available to the Buyer Parties copies that are true, none of correct and complete in all material respects of, all contracts, agreements, commitments, arrangements, licenses (including with respect to Intellectual Property Rights), leases (including with respect to personal property, but excluding real property leases) and other instruments to which the Company or any of its Subsidiaries is a party to or by which the Company, any of its Subsidiaries or any of their respective personal properties or assets is bound by(but which, for the avoidance of doubt, shall not include Company Benefit Plans) that:
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange ActSecurities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract contain covenants that limits in any material respect materially limit the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area area, or during to sell, supply or distribute any period of time in a manner that is material the Company’s services or products (including any non-compete, exclusivity, or “most-favored-nation” provisions) or which, following the consummation of the Merger, could materially restrict or purport to restrict such ability of the Surviving Entities or HoldCo;
(iii) provide for or govern the formation, creation, operation, management or control of any strategic partnership or joint venture of the Company and its Subsidiaries;
(iv) along with other similar licenses or other grant of Company Intellectual Property, taken as agreements, contain a wholelicense or other grant of rights to use Intellectual Property Rights that by its terms calls for more than $500,000 collectively in royalties for such license or rights to use such Intellectual Property Rights to or from the Company or its Subsidiaries (including covenants not to xxx and patent cross-licenses) excluding with respect to licenses or rights granted to the Company or its Subsidiaries, licenses for commercially available software or “open source software” or under a similar licensing or distribution model;
(v) any material Contract involve the joint development of products or technology with a third party with products or technology requiring an investment by the Company in excess of $500,000;
(vi) other than solely among wholly owned Subsidiaries of the Company, relate to (A) Indebtedness having an outstanding principal amount in excess of $5,000,000 or (B) conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case, in connection with which the aggregate actual contingent obligations of the Company and its Subsidiaries under such contract are greater than $5,000,000;
(vii) were entered into after June December 30, 2011 2016, or have not yet been consummated, for and involve the acquisition or disposition, directly or indirectly (including by mergermerger or otherwise), consolidation, combination of a business or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital stock or other equity interests of another Person;
(viviii) any Contract between or among by their terms call for aggregate payments by the Company or any of its SubsidiariesSubsidiaries or to the Company or any of its Subsidiaries under such contract of more than $1,000,000 in any one (1) year (including by means of royalty payments) other than contracts made in the ordinary course of business consistent with past practice and other than any Company Benefit Plan;
(ix) are with respect to any acquisition by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has (A) any continuing indemnification obligations or (B) any “earn-out” or other contingent payment obligations, in each case, greater than $1,000,000; or
(x) are entered into between any present or former director or executive officer of the Company (or any of their Affiliates), on the one hand, and any of their respective Affiliates (other than the Company or any a Subsidiary of its Subsidiaries)the Company, on the other hand, and that involves by their terms call for in excess of $100,000 in potential future payments, taken as whole, that is material other than (A) for purposes of employee benefits or relocation and (B) items which would not arise to the Company and its Subsidiaries;
(vii) any Contract between the Company or any a related party transaction under Item 404 of its Subsidiaries and any director or executive officer Regulation S-K of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation . Each contract of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract type described in clauses (i) through (ixx) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports this Section 4.11(a) is referred to herein as a “Company Material Contract.”.
(b) As To the extent not available in any report, statement, form, schedule, exhibit or other document filed or furnished by the Company or any of its Subsidiaries with the SEC, the Company has delivered or made available to Parent a true, correct and complete copy of each written Company Material Contract (as amended to date), subject to the confidentiality obligations therein to the extent that (i) such confidentiality obligations are described in Section 4.11(a) of the date Company Disclosure Letter and (ii) Company has unsuccessfully used its commercially reasonable efforts to obtain a waiver of this Agreementsuch confidentiality obligations from the counterparty, except as listed in Section 4.11(a) of the Company Disclosure Letter. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, Effect with respect to the Company: (i) each Company Material Contract is a legal, valid and binding obligation on the Company or the Subsidiary of the Company or its Subsidiaries that is a party thereto and, to the Knowledge of the Company’s Knowledge, the each other parties party thereto, and is in full force and effect and enforceable in accordance with its terms, except to the extent that they have previously expired in accordance with their terms; (ii) neither the Company, its Subsidiaries and, to the Knowledge of the Company, each other party thereto, have performed and complied with all obligations required to be performed or complied with by them under each Company Material Contract; and (iii) there is no default under any Company Material Contract by the Company nor or any of its Subsidiaries noror, to the Knowledge of the Company’s Knowledge, by any other party thereto is in breach or violation ofthereto, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or the lapse of time or the giving of notice or both would constitute a breach default thereunder by the Company or violation ofany of its Subsidiaries or, or default under, any Material Contract and (iii) to the Knowledge of the Company’s Knowledge, the Company and its Subsidiaries have not received by any written claim or notice of default, termination or cancellation under any such Material Contractother party thereto.
Appears in 2 contracts
Samples: Merger Agreement (Delek US Holdings, Inc.), Merger Agreement (Alon USA Energy, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as Schedule 3.14(a) of the date hereof, none Disclosure Schedule lists each following Contract (x) by which any of the Company Purchased Assets is bound or affected or (y) to which Seller, or its Subsidiaries applicable Affiliate, is a party and is used with respect to the Business or bound bythe Purchased Assets:
(i) any Contract that would be required to be filed involving aggregate consideration in excess of $1,000,000 or requiring performance by any party more than one (1) year from the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Actdate hereof;
(ii) any Contract involving that relates to the payment sale, license or receipt lease of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)Purchased Assets;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements Contract with (A) any Business Customer or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or (B) any of its Subsidiaries with any third partyBusiness Supplier;
(iv) any Contract that limits providing for any non-competition, non-solicitation, exclusive dealing, grants of exclusive rights, or prohibiting Seller or Purchaser (after the Closing) from freely engaging in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person otherwise including provisions on joint price-fixing, “most favored nation”, pricing limitations, required discounts, rights of first refusal, right of first offer, market or entity customer sharing, exclusivity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholemarket classification;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another PersonLabor Agreement;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiarieswith an Identified Employee;
(vii) any Contract between not executed in the Company ordinary course of business, not consistent with fair market terms, conditions and prices or any of its Subsidiaries with applicable Laws or otherwise not made on arm’s length terms and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Actconditions;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right in which Seller has agreed to terminate such Contract as purchase, “take or pay,” minimum commitments, volume requirements or similar obligations or supply a result minimum quantity of this Agreement goods or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andservices;
(ix) any other contracts and agreementsContract with an uncapped guaranty, whether liability or not made in the ordinary course of business, which are material indemnification for any product related to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses Business;
(ix) through any Government Contract;
(ixxi) above and each such any Contract that would be a Material could prohibit or delay the consummation of the transactions contemplated hereby;
(xii) any Contract but for relating to any Assumed Liability; and
(xiii) any Contract between or among Seller or any of its Affiliates on the exception one hand and any Affiliate of being filed as an exhibit to Seller on the Company SEC Reports is referred to herein as a “Material Contract”other hand.
(b) As of the date of this Agreement, except as would Seller has performed in all material respects all obligations required to be performed by it and is not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company in default under or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach of nor in receipt of any claim of default or violation of, or default under, breach under any Material Contract Contract, and no event has occurred which with the passage of time or not occurred through the Company’s giving of notice or any both would result in a default, breach or event of its Subsidiaries’ action or inaction noncompliance by Seller or, to the Company’s Knowledge, the action or inaction Knowledge of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default underSeller, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation other party under any such Material Contract. To the Knowledge of Seller, each other party to each such Contract has performed in all material respects all obligations required to be performed by it under such Contract. Each Material Contract (i) is legal, valid, binding and enforceable against Seller and, to the Knowledge of Seller, against each other party to such Contract and (ii) will continue to be legal, valid, binding and enforceable on identical terms as of immediately after the Closing. Purchaser has been supplied with a correct and complete copy of each Material Contract, together with all amendments, waivers or other changes thereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Material Contracts. (a) Except for this Agreement and except for All Contracts required to be filed as exhibits to the Company Velodyne SEC Reports Documents have been so filed prior to in a timely manner. Section 3.16(a) of the date of this AgreementVelodyne Disclosure Schedule sets forth a true and complete list, as of the date hereof, none of each of the Company following Contracts, excluding any Velodyne Benefit Plans, to which Velodyne or any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company which Velodyne or any of its Subsidiaries or any of their respective employees assets or businesses are bound (and any amendments, supplements and modifications thereto):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract that materially limits the ability of Velodyne or any of its affiliates (including, following the consummation of the Transactions, the Surviving Company and its affiliates) to engage or compete in any material line of business or with any Person or entity or in any geographic area area;
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(iv) any Contract or during any period series of time related Contracts relating to indebtedness for borrowed money (A) in a manner excess of $2,000,000 or (B) that is material to the Company becomes due and its Subsidiaries, taken payable as a wholeresult of the Transactions;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) which a third party has licensed or share capital granted any right to Velodyne or other equity interests any of another Personits Subsidiaries in any material Intellectual Property (the “Velodyne In-Licenses”);
(vi) any Contract between pursuant to which both Velodyne or among any of its Subsidiaries and a third party have licensed or granted substantially portfolio-wide rights in their respective Patents or other material Intellectual Property to one another (excluding licenses granted in the Company ordinary course of business by a customer to Velodyne or any of its Subsidiaries with respect to derivative works, improvements or modifications made by such third party to, or any implementations by such third party of, any product or technology provided to such third party by Velodyne or any of its Subsidiaries, on ) (the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries“Velodyne IP Cross-Licenses”), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any material Contract between the Company pursuant to which Velodyne or any of its Subsidiaries and has granted any director third party any rights or executive officer of the Company licenses, other than Ordinary Course Licenses, with respect to any Velodyne Intellectual Property or any Person beneficially owning five percent material product or more of the outstanding Shares required technology owned or purported to be disclosed pursuant to Item 7B owned by Velodyne or Item 19 any of Form 20its Subsidiaries (the “Velodyne Out-F under Licenses,” and collectively with the Exchange ActVelodyne In-Licenses and Velodyne IP Cross-Licenses, the “Velodyne IP Contracts”);
(viii) any Contract reasonably expected to result in payments in excess of $2,000,000 in any twelve (other than Contracts granting Company Options12) giving month period after the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andClosing Date;
(ix) any purchase, sale or supply contract that contains material volume requirements or commitments, exclusive or preferred purchasing, distribution or marketing arrangements for a material period of time, most favored nation status or similar provisions or promotional requirements, other contracts than any such Contracts that are not material to Velodyne and agreementsits Subsidiaries;
(x) any Velodyne Real Property Lease reasonably expected to result in payments in excess of $1,000,000 in any twelve (12) month period after the Closing Date;
(xi) any agreement that grants any right of first refusal or right of first offer or similar right or put, whether call or similar right or that limits or purports to limit the ability of Velodyne or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses (in any case, in excess of $2,000,000);
(xii) any acquisition or divestiture agreement (A) entered into since October 1, 2020, with a purchase price in excess of $5,000,000 or (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to exceed $2,000,000 (including indemnification obligations) that have not made been satisfied in full as of the ordinary course date hereof;
(xiii) any agreement that by its terms prohibits or limits the payment of businessdividends or other distributions by Velodyne or any of its Subsidiaries;
(xiv) any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of revenues, profits, losses, costs or liabilities by Velodyne with any other Person or any of its Subsidiaries;
(xv) any “single source” supply Contract pursuant to which goods or materials that are material to the Company and Velodyne or any of its Subsidiaries, taken as a whole, Subsidiaries are supplied to Velodyne or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Subsidiary from an exclusive source; or
(xvi) any Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”with any Governmental Entity.
(b) As Velodyne has heretofore made available to Ouster true, correct and complete copies of the date of this Agreement, except Contracts set forth in Section 3.16(a).
(c) Except as has not had and would not have reasonably be expected to have, individually or in the aggregate, a Company Velodyne Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation all Contracts set forth or required to be set forth in Section 3.16(a) of the Company Velodyne Disclosure Schedule or filed or required to be filed as exhibits to the Velodyne SEC Documents (the “Velodyne Material Contracts”) are valid, binding and in full force and effect and are enforceable by Velodyne or its Subsidiaries party thereto applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) Velodyne, or its applicable Subsidiary, has performed all obligations required to be performed by it under the Velodyne Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the Company’s KnowledgeKnowledge of Velodyne, the no other parties theretoparty to any Velodyne Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, (iiiii) since October 1, 2021, neither the Company Velodyne nor any of its Subsidiaries norhas received written notice of any actual, to the Company’s Knowledgealleged, any other party thereto is in breach possible or potential violation of, or default underfailure to comply with, any term or requirement of any Velodyne Material Contract Contract, and no event has occurred or not occurred through the Company’s or (iv) neither Velodyne nor any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not has received any written claim or notice of defaultthe intention of any party to cancel, termination terminate, materially change the scope of rights under or cancellation under fail to renew any such Velodyne Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Velodyne Lidar, Inc.), Merger Agreement (Ouster, Inc.)
Material Contracts. (a) Except for this Agreement Section 3.13(a) of the Aqua Disclosure Letter sets forth a list of the following Contracts, whether written or oral (and except for Contracts filed as exhibits if oral, a complete and accurate summary thereof) to which Aqua or any Aqua Subsidiary is a party, in each case to the Company SEC Reports filed prior to the extent in effect on this date of this Agreement, as of Agreement (the date hereof, none of the Company or its Subsidiaries is a party to or bound by:“Aqua Material Contracts”):
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange ActAqua Benefit Plans or Aqua Benefit Agreements;
(ii) any Contract involving Contracts for the payment or receipt provision of amounts laboratory services to the top 25 customers of Aqua, measured by revenue for the Company or any of its Subsidiaries, or relating period January to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)June 2005;
(iii) Contracts providing for the licensing of material Intellectual Property Rights (as defined in Section 3.14);
(iv) Contracts which are reasonably likely to involve aggregate payments by or to Aqua or any Aqua Subsidiary of more than $2,500,000 annually or $5,000,000 over the remaining term of the Contract), other than the sale of services or products in the ordinary course of business;
(v) real property leases or subleases;
(vi) Contracts that (A) limit the ability of Aqua or any Aqua Subsidiary or affiliate of, or successor to, Aqua, or, to the knowledge of Aqua, any executive officer of Aqua, to compete in any line of business or with any person or in any geographic area or during any period of time, (B) require Aqua or any Aqua Subsidiary or affiliate of, or successor to, Aqua to use any supplier or third party for all or substantially all of any of its material requirements or need in any respect, (C) limit or purport to limit the ability of Aqua or any Aqua Subsidiary or affiliate of, or successor to, Aqua to solicit any customers or clients of the other parties thereto, (D) require Aqua or any Aqua Subsidiary or affiliate of, or successor to, Aqua to provide to the other parties thereto “most favored nations” pricing or (E) require Aqua or any Aqua Subsidiary or affiliate of, or successor to, Aqua to market or co-market any products or services of a third party (other than any customer of Aqua or any Aqua Subsidiary);
(vii) Contracts relating to (A) any indebtedness (which does not include accounts payable incurred in the ordinary course of business), notes payable (including notes payable in connection with acquisitions), accrued interest payable or other obligations for borrowed money, whether current, short-term, or long-term, secured or unsecured, of Aqua or any Aqua Subsidiary, (B) any purchase money indebtedness or earn-out or similar obligation in respect of purchases of property or assets by Aqua or any Aqua Subsidiary, (C) any lease obligations of Aqua or any Aqua Subsidiary under leases which are capital leases in accordance with GAAP, (D) any financing of Aqua or any Aqua Subsidiary effected through “special purpose entities” or synthetic leases or project financing, (E) any obligations of Aqua or any Aqua Subsidiary in respect of banker’s acceptances or letters of credit (other than stand-by letters of credit in support of ordinary course trade payables), (F) any obligation or liability of Aqua or any Aqua Subsidiary with respect to interest rate swaps, collars, caps, currency derivatives and similar hedging obligations or (G) any guaranty of any of the foregoing (the liabilities and obligations referred to in (A) through (G) above, “Indebtedness”);
(viii) Contracts entered into by Aqua or any of the Aqua Subsidiaries and any other person providing for the acquisition by Aqua or such Aqua Subsidiary (including by merger, consolidation, acquisition of stock or assets or any other business combination) of any corporation, partnership, other business organization or division or unit thereof or any material amount of assets of such other person, and information identifying the maximum amounts, if any, that are still payable or potentially payable to any other person under such Contracts pursuant to any post-closing adjustment to the purchase price (including under any “earnout” or other similar provision);
(ix) stockholder agreements, registration rights agreements, voting trusts or other Contracts to which Aqua is a party or by which it is bound relating to the voting of any shares of the capital stock of Aqua,
(x) joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities of any person by the Company Aqua or any Aqua Subsidiary with any third person;
(xi) all confidentiality, non-disclosure or standstill agreements entered into by Aqua or any of its the Aqua Subsidiaries with any third party;(other than in the ordinary course of business); and
(ivxii) any Contract other Contracts not covered by the foregoing, that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is are otherwise material to Aqua and the Company and its Aqua Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Subscription, Merger and Exchange Agreement (Specialty Laboratories Inc), Subscription, Merger and Exchange Agreement (Ameripath Inc)
Material Contracts. (a) Except for this Agreement as set forth in Section 3.19 of the Company Disclosure Schedule and except for Contracts filed Company Benefit Plans, as exhibits to the Company SEC Reports filed prior to of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving between the payment Company or receipt any Subsidiary of amounts by the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any Subsidiary of the Company or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, Affiliate or family member;
(iii) any Contract that imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of them, to compete with any other person in any line of business or geographic region, or solicit any customer (or that following the Effective Time will restrict the right or ability of Parent or its Subsidiaries to engage in any line of business or compete in any geographic area) excluding any Contracts with sales representatives or distributors;
(iv) any Contract that obligates the Company or any of its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains a “most favored nation” or similar covenant excluding any Contracts with sales representatives or distributors;
(v) any acquisition or divestiture Contract that contains any “earnout” or other contingent payment obligations that are outstanding obligations of the Company or any of its Subsidiaries as of the date of this Agreement;
(vi) a mortgage, indenture, security agreement, guaranty, pledge or other agreement or instrument relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements accounts receivable or other agreements outside accounts payable in the ordinary course of business involving a sharing and consistent with past practice) in an amount in excess of profits$500,000 in the aggregate;
(vii) any Contract that grants any right of first refusal or right of first offer or similar right with respect to any assets, losses, costs rights or liabilities properties of the Company or its Subsidiaries that are material;
(viii) any Contract that provides for the acquisition or disposition by the Company or any of its Subsidiaries with of any third partyassets (other than acquisitions or dispositions of assets in the ordinary course of business) or a business (whether by merger, sale of stock or otherwise) that contains ongoing obligations that are material to the Company and the Company’s Subsidiaries, taken as a whole;
(ivix) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(x) any Contract that limits in any material respect expressly limiting or restricting the ability of the Company or any of its Subsidiaries (A) to make distributions or any declare or pay dividends in respect of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiariescapital stock, taken as a whole;
(v) any material Contract entered into after June 30partnership interests, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital membership interests or other equity interests of another Person;
interests, as the case may be, (viB) any Contract between or among to make loans to the Company or any of its Subsidiaries, or (C) to grant Liens on the one hand, and any of their respective Affiliates (other than property owned by the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(viixi) any Contract between that obligates the Company or any of its Subsidiaries and to make any director loans, advances or executive officer of the Company capital contributions to, or investments in, any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where person, except for (A) such Contract requires any paymentloans or advances for indemnification, taken as wholeattorneys’ fees, that is material to the Company or travel and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made business expenses in the ordinary course of business, which are material to (B) extended payment terms for customers in the ordinary course of business or (C) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of $150,000 individually;
(xii) any settlement agreement (A) with a Governmental Entity, (B) that requires the Company and its Subsidiaries to pay more than $250,000 after the date of this Agreement or (C) imposes any restrictions on the business of the Company or its Subsidiaries;
(xiii) any Contract with a Top Customer, taken as Top Distributor or Top Supplier (excluding, for clarity, purchase orders issued in the ordinary course of business, confidentiality agreements, statements of work and other ancillary agreements);
(xiv) any Contract that involved the payment of more than $1,000,000 by the Company and its Subsidiaries in the fiscal year ended March 31, 2017 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in the fiscal year ending March 31, 2018 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xv) any Contract that involved the receipt of more than $1,000,000 by the Company and its Subsidiaries in the fiscal year ended March 31, 2017 or that is expected to result in the receipt of such amount by the Company and its Subsidiaries in the fiscal year ending March 31, 2018 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvi) any Contract relating to the supply of any item used by the Company or a wholeSubsidiary of the Company that is a sole source of supply of any raw material, component or service and under which the Company paid more than $1,000,000 to the relevant supplier in the fiscal year ended March 31, 2017 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in the fiscal year ending March 31, 2018 (excluding purchase orders issued in the ordinary course of business);
(xvii) any material Government Contract that has not been closed out;
(xviii) any Contract relating to the creation of any Lien (other than Permitted Liens) with respect to any material asset of the Company or any Subsidiary of the Company; or
(xix) any Contract involving the licensing of any material Company Owned Intellectual Property from the Company or any of its Subsidiaries to any third party, or the conduct licensing of their respective businessesany material Company Licensed Intellectual Property from any third party to the Company or any of its Subsidiaries (excluding non-exclusive licenses granted in connection with the sale of products and services to customers in the ordinary course of the business, and excluding commercially available, off-the-shelf, software programs), in each case with present or future obligations binding on the absence Company or any of which would have a Company Material Adverse Effectits Subsidiaries. Each such Contract described All contracts of the types referred to in clauses (i) through (ixxix) above and each such Contract that would be a Material Contract but for the exception (whether or not set forth on Section 3.19 of being filed as an exhibit to the Company SEC Reports is Disclosure Schedule), are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a “complete and correct copy of each Company Material Contract”Contract as in effect on the date of this Agreement.
(b) As of Neither the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation nor any Subsidiary of the Company is in breach of or its Subsidiaries party thereto default under the terms of any Company Material Contract and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any knowledge of its Subsidiaries nor, to the Company’s Knowledge, any no other party thereto to any Company Material Contract is in breach or violation of, of or default under, under the terms of any Company Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge of the Company’s Knowledge, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach or violation of, of or default underunder the terms of any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto (except in each case as enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally, and that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and is in full force and effect, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and (iii) to as of the Company’s Knowledgedate of this Agreement, neither the Company and nor any of its Subsidiaries have not has received any written claim or notice of the intention of any other party to any Company Material Contract to terminate for default, termination convenience or cancellation under otherwise any Company Material Contract prior to its stated expiration date, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material ContractAdverse Effect.
(c) Since April 1, 2016 and prior to the date of this Agreement, no Top Supplier, Top Customer or Top Distributor has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given written notice to the Company or any Subsidiary of the Company of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Littelfuse Inc /De), Merger Agreement (Ixys Corp /De/)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none Section 4.15 of the Company Disclosure Schedule sets forth all of the following Contracts to which the Company, the Purchased Companies or its any of their Subsidiaries is a party to or by which it is bound by:
under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date hereof as permitted by or in compliance with Section 6.2 (collectively, the “Material Contracts”): (i) Contracts with any Contract that would be required to be filed by the Company pursuant to Item 4 current officer or director of the Instructions to Exhibits of Form 20-F under Company, the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries Purchased Companies or any of their respective employees Subsidiaries; (ii) Contracts with any labor union or association representing any employee of the Company, the Purchased Companies or any of their Subsidiaries; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any of the assets of the Company, the Purchased Companies or any of their Subsidiaries other than in the Ordinary Course of Business or for the grant to any person of any preferential rights to purchase any of its assets; (v) joint venture agreements; (vi) Contracts containing covenants of the Company, the Purchased Companies or any of their Subsidiaries not to compete in any material line of business or with any Person person in any geographical area or entity covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographic area geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or during any period of time their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; (ix) any distributor, supplier (as such term is used in a manner that is the Company SEC Documents), advertising, agency or manufacturer’s representative Contract; (x) agreement of guarantee, support, assumption or endorsement of, or any similar commitment with respect to the Liability or Indebtedness of any other Person; (xi) trust indenture, mortgage, promissory note, loan agreement or (xii) other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are otherwise material to the Company Company, the Purchased Companies and its Subsidiaries, any of their Subsidiaries taken as a whole;
(v) any material Contract entered into after June 30. The Company, 2011 the Purchased Companies and their Subsidiaries have provided or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material made available to the Company Purchaser true and its Subsidiaries;
(vii) any Contract between the Company or any complete copies of its Subsidiaries and any director or executive officer all of the Company or any Person beneficially owning five percent or more written Material Contracts and written summaries of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 material terms of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation all of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value oral Material Contracts. All of the outstanding receivables due to Material Contracts and other agreements are in full force and effect and are the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto andCompany, the Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). None of the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor Purchased Companies or any of its their Subsidiaries is in default in any material respect under any Material Contract, nor, to the Knowledge of the Company’s Knowledge, the Purchased Companies or any of their Subsidiaries, is any other party thereto is in breach or violation of, or default under, to any Material Contract and no event has occurred or not occurred through the Company’s or in default thereunder in any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractmaterial respect.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Segal Edward D), Stock and Asset Purchase Agreement (Applied Materials Inc /De)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound byby any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) that is a lease, easement or other instrument constituting the chain of title to the properties and assets onshore in the United States owned or held by Company or any of its Subsidiaries) (each a “Contract”) that:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) includes any Contract involving contingent payment obligations or similar payment obligations (including any “earn-out” obligations) that would require payments to any person (other than the payment or receipt Company, a wholly-owned Subsidiary of amounts by the Company or any a wholly-owned Subsidiary of its Subsidiariesthe MLP, Parent, or relating to material Indebtedness (other than any Indebtedness solely between Subsidiary of the Company and any of its Subsidiaries);
(iiiParent) any material joint venture contracts, strategic cooperation, partnership arrangements arising in connection with the acquisition or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities disposition by the Company or any of its Subsidiaries of any business which payment obligations would reasonably be expected to result in future payments by the Company or its Subsidiaries that exceed, individually or in the aggregate, $25 million;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any third partymaterial obligations that, after the Effective Time, would run to the favor of any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP, Parent, or any Subsidiary of the Parent);
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $25 million (excluding any plugging and abandonment, decommissioning and/or asset retirement bonds or guarantees) or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $25 million (excluding any plugging and abandonment, decommissioning and/or asset retirement bonds or guarantees);
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company; provided that, in each case of (A) and (B), with respect to any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) related to any properties or assets onshore in the United States, only to the extent that limits in such rights would be triggered by the transactions contemplated under this Agreement;
(vi) was entered into to settle any material respect litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or any pay dividends or make distributions in respect of their respective employees to compete in any material line of business capital stock, partner interests, membership interests or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeother equity interests;
(vviii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any material Contract entered into after June 30partnership, 2011 limited liability company or not yet consummatedjoint venture in which the Company owns, for directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest capital in excess of $25 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition, directly disposition of any business or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased the purchase and sale or marketing of Hydrocarbons in the ordinary course of business consistent with past practice) pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between which the Company or any of its Subsidiaries and has any director liability in excess of $25 million in any transaction or executive officer series of related transactions;
(x) (A) is a material joint operating agreement (JOA) with a “Contract Area” greater than 10,000 gross surface acres or (B) creates any material presently unexpired area of mutual interest (AMI) in favor of a person other than the Company, a wholly-owned Subsidiary of the Company or any Person beneficially owning five percent or more a wholly-owned Subsidiary of the outstanding Shares MLP, Parent, or any Subsidiary of Parent and sets forth an area of mutual interest area of greater than 10,000 gross surface acres; or
(xi) is a Contract required to be disclosed pursuant to Item 7B or Item 19 set forth on Section 3.21(a)(xi) of Form 20-F under the Exchange Act;Company Disclosure Schedules.
(viiib) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ixxi) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As . Each Material Contract is a valid and binding obligation of the date Company and its Subsidiaries as applicable and, to the knowledge of this Agreementthe Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the knowledge of the Company’s Knowledge, any other party thereto to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract Contract, and no event has occurred that, with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute such a breach breach, violation or violation ofdefault, except for breaches, violations or default underdefaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for any Material Contract and (iii) Contracts filed without redaction as exhibits to the Company’s KnowledgeCompany SEC Documents or the MLP SEC Documents, the Company and its Subsidiaries have not received any written claim or notice a copy of default, termination or cancellation under any such each Material ContractContract has previously been made available to Parent.
Appears in 2 contracts
Samples: Merger Agreement (Noble Energy Inc), Merger Agreement (Noble Energy Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts contracts listed in Section 3.11(a) of the Vornado Disclosure Letter or publicly filed by Vornado or Newco with the SEC, as exhibits to the Company SEC Reports filed prior to of the date of this Agreement, as of the date hereof, none of the Company Newco, Newco OP or its Subsidiaries any Vornado Included Entity is a party to or bound byby or subject to any contract that, as of the date hereof:
(i) obligates Newco, Newco OP or such Vornado Included Entity to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $500,000 and is not cancelable within ninety (90) days without material penalty to such Vornado Included Entity, except for any Contract that would be required lease under which such Vornado Included Entity is lessee or any ground lease affecting any Vornado Included Property or relates to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F tenant improvement expenses under the Exchange Acta Vornado Lease;
(ii) contains any Contract involving non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the payment business of Newco, Newco OP or receipt of amounts by the Company or such Vornado Included Entity in any of its Subsidiariesmaterial respect, or relating to would otherwise limit the freedom of such Persons with respect to, or restrict the lines of business conducted by Newco, Newco OP or such Vornado Included Entity or the geographic area in which Xxxxx, Xxxxx OP or such Vornado Included Entity may conduct business in any material Indebtedness (other than respect, excluding any Indebtedness solely between the Company and any of its Subsidiaries)such contract that is a Vornado Lease;
(iii) is an agreement which obligates Newco, Newco OP or such Vornado Included Entity to indemnify any material joint venture contractspast or present directors, strategic cooperationofficers, partnership arrangements trustees, employees and agents of Vornado, Newco, Newco OP or such Vornado Included Entity pursuant to which Newco, Newco OP or such Vornado Included Entity is the indemnitor, in each case, other than pursuant to any Governing Documents, operating agreements, property management agreements, advisory agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third partysimilar agreement;
(iv) any Contract that limits in obligates Newco, Newco OP or such Vornado Included Entity to any material respect continuing contractual obligation (i) for indemnification under any agreements relating to the ability sale of the Company real property, or any of its Subsidiaries or any of their respective employees to compete in any material line of other business or with material assets, previously owned, whether directly or indirectly, by Newco, Newco OP or such Vornado Included Entity that are reasonably likely to involve a Liability of $1,000,000 or more or (ii) to make payments, contingent or otherwise, on account of prior acquisitions or sales of any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeVornado Included Property;
(v) any material Contract entered into after June 30constitutes an Indebtedness obligation of Newco, 2011 Newco OP or not yet consummatedsuch Vornado Included Entity with a principal amount outstanding as of the date hereof greater than $500,000, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personany such Indebtedness for which all parties are Vornado Included Entities;
(vi) requires Newco, Newco OP or such Vornado Included Entity to dispose of or acquire assets or properties (other than in connection with the expiration of a Vornado Lease or a ground lease affecting a Vornado Included Property) with a fair market value in excess of $1,000,000, or involves any Contract between pending or among the Company contemplated merger, consolidation or similar business combination transaction, except for any Vornado Lease or any ground lease affecting any Vornado Included Property;
(vii) constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a hedging transaction that relates to any of its SubsidiariesNewco, Newco OP or a Vornado Included Entity or to Indebtedness secured by any Vornado Included Asset;
(viii) is an agreement, arrangement or understanding between Newco, Newco OP or such Vornado Included Entity, on the one hand, and any other Vornado Party, any Affiliate of their respective Affiliates (Vornado, Newco, Newco OP, any other than the Company Vornado Included Entity, or any of its Subsidiaries)Vornado Party’s respective current directors, officers, trustees, partners, members or other Affiliates, on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate any such Contract as a result of this Agreement or the consummation of the Merger where agreement (A) such Contract requires any paymentwhere all parties are Vornado Included Entities, taken as whole, that is material to the Company and its Subsidiaries or (B) which will be terminated on or before the value of the outstanding receivables due to the Company and its Subsidiaries under such ContractClosing or (C) which will otherwise not be binding on Newco, taken as whole, that is material to the Company and its Subsidiaries; andNewco OP or a Vornado Included Entity following Closing;
(ix) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of Newco, Newco OP or such Vornado Included Entity with any party other than a Vornado Included Entity;
(x) constitutes a loan to any Person (other than a wholly owned Vornado Included Entity) by Newco, Newco OP or such Vornado Included Entity (other than advances made pursuant to the Vornado Leases or any disbursement agreement, development agreement, or development addendum entered into in connection with a Vornado Lease with respect to the development, construction, or equipping of Vornado Included Properties or the funding of improvements to Vornado Included Properties) in an amount in excess of $500,000;
(xi) is an agreement obligating Newco, Newco OP or such Vornado Included Entity to provide any funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person in excess of $500,000;
(xii) is an agreement entered into by Newco, Newco OP or such Vornado Included Entity with or for the benefit of any Governmental Entity requiring payment in excess of $500,000 in any calendar year remaining in its term or requires total remaining payment in excess of $500,000, other than any such agreement that is a Vornado Lease or Vornado Ground Lease;
(xiii) is a gross maximum price contract or an agreement for any construction or development work (including any additions or expansions) which are currently in effect and under which Newco, Newco OP or such Vornado Included Entity currently has an obligation in excess of $5,000,000;
(xiv) is a management agreement (i.e., contracts providing for or otherwise governing the management and/or operation of any Vornado Included Entities or Vornado Included Properties), including, without limitation, leasing, asset management, construction management and agreementsproperty management agreements pursuant to which Newco, Newco OP or such Vornado Included Entity are obligated to pay to another party an amount in excess of $1,000,000, other than any such agreement where all parties are Vornado Included Entities;
(xv) is a leasing, development management or property management agreement pursuant to which Newco, Newco OP or any Vornado Included Entity perform such services for a third-party, other than any Vornado Lease or any such agreement where all parties are Vornado Included Entities; or
(xvi) is an agreement that obligates payments to any Person contingent on the future operating results or other similar future events having a material economic effect relating to the Vornado Included Assets or arising out of prior results, leases, acquisitions or sales in respect of the Vornado Included Assets pursuant to which Newco, Newco OP or such Vornado Included Entity could become an obligor pursuant to the Transactions. Each contract of the type described above in this Section 3.11(a), whether or not made in listed on Section 3.11(a) of the ordinary course Vornado Disclosure Letter, to which Newco, Newco OP or any Vornado Included Entity is a party or by which it is bound as of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports date hereof is referred to herein as a “Vornado Material Contract”. True and complete copies of each Vornado Material Contract listed on Section 3.11(a) of the Vornado Disclosure Letter have been provided or made available to the JBG Parties.
(b) As of Except as, individually or in the date of this Agreementaggregate, except as has not had and would not reasonably be expected to have a Company Vornado Material Adverse Effect, (i) each Vornado Material Contract is a legal, valid valid, binding and binding obligation of the Company enforceable on Newco, Newco OP or its Subsidiaries each Vornado Included Entity that is a party thereto and, to the Company’s Knowledgeknowledge of Vornado, the each other parties party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (ii) neither regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the Company nor aggregate, have not had and would not reasonably be expected to have a Vornado Material Adverse Effect, Newco, Newco OP and each Vornado Included Entity has performed all obligations required to be performed by it prior to the date hereof under each Vornado Material Contract and, to the knowledge of Vornado, each other party thereto has performed all obligations required to be performed by it prior to the date hereof under each Vornado Material Contract. None of Newco, Newco OP or any of its Subsidiaries Vornado Included Entity, nor, to the Company’s Knowledgeknowledge of Vornado, any other party thereto thereto, is in material breach or violation of, or default under, any Vornado Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orthat, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute a violation or breach or violation of, or default under, any Vornado Material Contract and (iii) Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the Company’s Knowledgeaggregate, the Company and its Subsidiaries reasonably be expected to have not a Vornado Material Adverse Effect. None of Newco, Newco OP or any Vornado Included Entity has given or received any written claim or notice of default, termination any violation or cancellation default under any such Vornado Material Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Vornado Material Adverse Effect.
Appears in 2 contracts
Samples: Master Transaction Agreement (JBG SMITH Properties), Master Transaction Agreement (Vornado Realty Lp)
Material Contracts. The Seller has provided to the Purchaser true, correct and complete copies of all contracts material to the operation of the Business, including, but not limited to, the following contracts to which the Seller or a Subsidiary is a party (individually a "Material Contract" and collectively the "Material Contracts"):
(a) Except all bonds, debentures, notes, loans, credit or loan agreements or loan commitments, mortgages, indentures, guarantees or other contracts relating to the borrowing of money or binding upon any properties or assets (real, personal or mixed, tangible or intangible) of the Seller or its Subsidiaries;
(b) all leases relating to Real Property or other leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $10,000 individually by the Seller or its Subsidiaries;
(c) all contracts or agreements which limit or restrict the Seller or its Subsidiaries or, to the knowledge of the Seller, any officers or key employees of the Seller or its Subsidiaries from engaging in any business in any jurisdiction;
(d) all franchising and licensing agreements other than customer contracts entered into in the ordinary course of business consistent with past practice and non-exclusive software licenses for this generally available software;
(e) any contract or agreement for capital expenditures or the acquisition or construction of fixed assets requiring the payment by the Seller or any of its Subsidiaries of an amount in excess of $10,000;
(f) any contract that provides for an increased payment or benefit, or accelerated vesting, upon the execution of the Agreement and or in connection with the transactions contemplated hereby;
(g) any contract or agreement granting any person a Lien on all or any part of any assets;
(h) any contract or agreement for the cleanup, abatement or other actions in connection with any Hazardous Materials (as hereinafter defined), the remediation of any existing environmental condition or relating to the performance of any environmental audit or study;
(i) any contract or agreement granting to any person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any assets;
(j) any contract or agreement with any agent, distributor or representative which is not terminable without penalty on thirty (30) calendar days' or less notice;
(k) except for Contracts filed as exhibits contracts with customers entered into in the ordinary course of business consistent with past practice and license agreements with respect to generally available software, any contract or agreement for the granting or receiving of a license or sublicense or under which any person is obligated to pay or has the right to receive a royalty, license fee or similar payment;
(l) any contract providing for the indemnification or holding harmless of any officer, director or employee;
(m) any joint venture or partnership contract;
(n) any customer contract for the provision of goods or services by the Seller;
(o) any outstanding power of attorney empowering any Person to act on behalf of the Seller;
(p) any contracts, consulting agreements or termination or severance agreements in respect of any officer, employee or former employee (to the Company SEC Reports filed prior extent any obligations remain in existence with respect to the date such former employee), consultant or independent contractor (other than Seller Benefit Plans); and
(q) all existing contracts and commitments (other than those described in subparagraphs (a) through (p) of this Agreement, as Section 3.13) to which the Seller or any of the date hereof, none of the Company or its Subsidiaries is a party or by which its properties or assets are bound involving an annual commitment or annual payment to or bound by:
(i) any Contract that would be required to be filed by from the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company Seller or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company more than $30,000 individually or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that which is otherwise material to the Company Business. Copies of all correspondence and its Subsidiariesa written summary of all oral commitments with respect to the Assumed Contracts that would result in a material modification of such contract or would result in costs or expenses in excess of $15,000 have been provided by the Seller to the Purchaser or such commitments have been quantified in Section 3.11 of the Seller Disclosure Letter. Notwithstanding the foregoing, taken as a whole;
(v) any material Contract entered into after June 30the Seller has not provided to the Purchaser copies of all nondisclosure agreements, 2011 or employment letters and software licenses for generally available software. Each of the employment letters that has not yet consummatedbeen provided to the Seller is substantially in the form included in Section 3.13 of the Seller Disclosure Letter. The Assumed Contracts are legal, for the acquisition or dispositionvalid, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, binding and any of enforceable in accordance with their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material terms with respect to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto Seller and, to the Company’s KnowledgeSeller's knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any each other party thereto is to such Assumed Contracts. Except as set forth in breach Section 3.5 of the Seller Disclosure Letter, there are no existing defaults or violation ofbreaches of the Seller under any Assumed Contract (or events or conditions which, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach default or breach) and, to the knowledge of the Seller, there are no such defaults (or events or conditions which, with notice or lapse of time or both, would constitute a default or breach) with respect to any third party to any Assumed Contract. Except as set forth in Section 3.13 of the Seller Disclosure Letter, the Seller is not participating in any discussions or negotiations regarding modification of or amendment to any Assumed Contract or entry in any new material contract applicable to the Business or the Assets. Section 1.2(d) of the Seller Disclosure Letter identifies each Assumed Contract set forth therein that requires the consent of or notice to the other party thereto to avoid any breach, default or violation ofof such contract, agreement or default underother instrument in connection with the transactions contemplated hereby, including the assignment of such Assumed Contract to the Purchaser. Section 1.2(d) of the Seller Disclosure Letter also identifies each Assumed Contract set forth therein that (i) obligates the Seller or any Material Contract of its Subsidiaries to perform research and development, (ii) contains any fixed price research and development obligations or (iii) contains any research and development or deliverable obligations which are currently unfunded, not supported by customer obligations to the Company’s Knowledgepay for such efforts on a time and material basis, the Company and its Subsidiaries have not received any written claim unscheduled or notice of default, termination or cancellation under any such Material Contractbehind schedule.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Phoenix International LTD Inc), Asset Purchase Agreement (London Bridge Software Holdings PLC)
Material Contracts. (a) Except for Neither the Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, lease, commitment or understanding (whether written or oral) (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement and except for Contracts that has not been filed as exhibits to or incorporated by reference in the Company SEC Reports filed prior to the date of this Agreementhereof, as (ii) that contains (A) any non-competition or exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any respect the ability of the date hereofCompany, none the Surviving Corporation or any of their Subsidiaries or their businesses or, following consummation of the Transaction and the other transactions contemplated hereby, Parent or its Affiliates, to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent or its Affiliates, is a party to or bound by:
would be conducted or (iB) any Contract agreement that would be required to be filed by the Company pursuant to Item 4 grants any right of the Instructions to Exhibits first refusal or right of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment first offer or receipt of amounts by the Company similar right or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect or purports to limit the ability of the Company or any of its Subsidiaries or, following consummation of the Transaction, Parent or its Affiliates, to own or operate any of their respective employees assets or business, (iii) containing a “most favored nation” clause or other similar term providing preferential pricing or treatment to compete in any material line of business a party (other than the Company or with any Person or entity or in any geographic area or during any period of time in a manner its Subsidiaries) that is material to the Company and or its Subsidiaries, taken as a whole;
(viv) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any Affiliate, director or officer (or, to the Company’s Knowledge, any of their respective Affiliates (other than the Company or any of its SubsidiariesAffiliates), on the other hand, that involves payments, taken as whole, that is material to other than (A) contracts between the Company and any of its Subsidiaries;
, (viiB) contracts among Subsidiaries of the Company and (C) contracts with Parent or its Affiliates or (v) that, upon the execution, delivery or performance by the Company of this Agreement or the consummation of any Contract between of the transactions contemplated hereby, requires any consent or other action by any Person under, constitutes a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or causes or permits the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value business of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract contract, arrangement, commitment or understanding of the type described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to this Section, whether or not set forth in the Company SEC Reports Disclosure Schedule, is referred to herein as a “Material Contract”.
(b) As of the date of this AgreementExcept for breaches, except as violations or defaults which would not have reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Material Contract Contracts is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, in full force and effect and (ii) neither the Company nor any of its Subsidiaries norSubsidiaries, nor to the Company’s Knowledge, Knowledge any other party thereto is in breach or violation to a Material Contract, has violated any provision of, or taken or failed to take any action which, with or without notice, lapse of time, or both, would constitute a default underunder the provisions of such Material Contract, any Material Contract and no event has occurred or not occurred through neither the Company’s or Company nor any of its Subsidiaries’ action Subsidiaries has received notice that it has breached, violated or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation defaulted under any such Material Contract.
Appears in 2 contracts
Samples: Transaction Agreement (Sovereign Bancorp Inc), Transaction Agreement (Banco Santander, S.A.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date For purposes of this Agreement, as a “Material Contract” means each of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
following: (i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Securities Act;
); (ii) any Contract involving the payment with any employee, individual consultant or receipt independent contractor that provides for annual compensation in excess of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company $150,000 and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities is not immediately terminable by the Company or any of its Subsidiaries without cost or liabilities, including any Contract requiring the Company to make a payment to any employee on account of the transactions contemplated by this Agreement (including the Merger) or any Contract that is entered into in connection with this Agreement; (iii) any third party;
collective bargaining agreement or other Contract with a labor organization; (iv) any material Contract that limits providing for indemnification or any guaranty (in each case, under which the Company has continuing obligations as of the date hereof); (v) any material respect Contract containing any covenant, commitment or other obligation (A) limiting the ability right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any Registered Company Owned Intellectual Property or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area line of business, (B) granting any exclusive rights, (C) containing a “most favored nation” or during any period of time in a manner that is material to the Company and its Subsidiariessimilar provision, taken as a whole;
(vD) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between prohibiting the Company or any of its Subsidiaries (or, after the Effective Time, Parent) from engaging in business with any Person or levying a fine, charge or other payment for doing so or (E) otherwise prohibiting or limiting the right of the Company or its Subsidiaries to develop, sell, distribute or manufacture any products or services, other than such Contracts that may be cancelled without continuing material obligations, restrictions or liabilities to the Company upon notice of thirty (30) days or less; (vi) any Contract (A) relating to the license, disposition or acquisition by the Company or any of its Subsidiaries of a material amount of assets other than in the ordinary course of business or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other Person or other business enterprise other than the Company’s Subsidiaries; (vii) any Contract for the acquisition or disposition of any business; (viii) any material dealer, distributor, sales agency, joint marketing agreement, to jointly market any product, technology or service; (ix) any material Contract pursuant to which the Company or any of its Subsidiaries have continuing obligations to jointly develop any Intellectual Property Rights that will not be owned solely by the Company or one of its Subsidiaries; (x) any joint venture agreements, material development agreements, or material outsourcing arrangements (including material Contracts to assemble, manufacture and package any director Company Product); (xi) any mortgages, indentures, guarantees, material loans or executive officer credit agreements, security agreements or other Contracts relating to the borrowing of money or material extension of credit, other than trade receivables and payables; (xii) any settlement Contract, other than (a) releases entered into with former employees or independent contractors of the Company in the ordinary course of business or (b) settlement Contracts only involving the payment of cash (which has been paid) in amounts that do not exceed $250,000 in any individual case; (xiii) any Contract with the federal government, any foreign government, any state or local government or any division, subdivision, department, agency or instrumentality thereof; (xiv) any Lease of, or purchase or sale Contract with respect to, any real property; (xv) any Contract with any healthcare provider (e.g., doctors and contract research organizations) of the Company or any Person beneficially owning five percent of its Subsidiaries that may not be cancelled without material liability to the Company upon notice of thirty (30) days or less; (xvi) any Contract that provides for payment obligations by the Company or any of its Subsidiaries of $100,000 or more of the outstanding Shares required to be in any individual case and is not disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ixxv) above above; and each such Contract that (xvii) any Contract, the termination or breach of which would be reasonably expected to have a Company Material Contract but for the exception of being Adverse Effect and is not disclosed pursuant to clauses (i) through (xv) above. Other than Material Contracts filed as an exhibit to the Company SEC Reports Reports, Section 5.1(t) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to which the Company or any of its Subsidiaries is referred to herein as a “party or which bind or affect their respective properties or assets, and identifies each subsection of Section 5.1(t) that describes such Material Contract”.
(b) As . The Company has delivered or made available to Parent complete and correct copies of each such Material Contract. To the knowledge of the date of this AgreementCompany, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation on the Company (and/or each such Subsidiary of the Company or its Subsidiaries party thereto andCompany, to as the Company’s Knowledgecase may be) and is in full force and effect, the other parties thereto, (ii) and neither the Company nor any of its Subsidiaries party thereto, nor, to the knowledge of the Company’s Knowledge, any other party thereto thereto, is in breach or violation of, or default under, in any material respect, any such Material Contract Contract, and to the knowledge of the Company no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute such a breach or default thereunder in any material respect by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto. Neither the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or alleged violation of, or breach of or default under, or intention to cancel or modify, any Material Contract and (iii) to the Company’s Knowledge, Contract. Neither the Company and nor any of its Subsidiaries have has entered into any standstill agreement with any third party (or other agreement containing a standstill provision) that does not received any written claim or notice automatically terminate upon the execution of default, termination or cancellation under any such Material Contractthis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Wright Medical Group Inc), Merger Agreement (Biomimetic Therapeutics, Inc.)
Material Contracts. (a) Except for this Agreement and except for Agreement, Contracts filed as exhibits to the Company SEC Reports filed prior to Documents or as set forth in Section 3.20 of the Company Disclosure Schedule, as of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to any of the following Contracts which are currently in force or bound byunder which the Company has continuing liabilities or obligations:
(i) any Contract “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be filed by the Company pursuant to disclosed under Item 4 404 of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Securities Act);
(ii) any Contract involving the payment or receipt of amounts by between the Company or any Subsidiary of its Subsidiariesthe Company, on the one hand, and any officer, director or relating to material Indebtedness affiliate (other than any Indebtedness solely between a wholly-owned Subsidiary of the Company) of the Company and (or of any Subsidiary of the Company) or any of its Subsidiariestheir respective “associates” or “immediate family” members (as such terms are defined in Rule 2b-2 and Rule 6a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, affiliate or family member, but not including any Company Benefit Plans;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in imposes any material respect restriction on the right or ability of the Company or any of its Subsidiaries to compete (or that following the Effective Time will restrict the ability of Parent and its Subsidiaries (other than the Company and its Subsidiaries) to compete) with any other person in any line of business, therapeutic area or geographic region or that contains any standstill or similar agreement pursuant to which the Company or its Subsidiaries has agreed not to acquire or dispose of the securities of another person;
(iv) any Contract that obligates the Company or any of their respective employees its Subsidiaries (or following the Effective Time, obligates Parent or its Subsidiaries (other than the Company and its Subsidiaries)) to compete in conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” or similar covenants;
(v) any material line licensing agreement (other than commercial agreements which include licenses for the use of trademarks of the Company or any of its Subsidiaries) that contains indemnities or other obligation including “earnout” or other contingent payment obligations that would reasonably be expected to result in the receipt or making of future payments in excess of $250,000 in the twelve (12)-month period following the date hereof;
(vi) any Company Collective Bargaining Agreement to which the Company or a Company Subsidiary is a party;
(vii) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $250,000;
(viii) any Contract that grants any right of first refusal, right of first offer or similar right to a third party (including stockholders of the Company) with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(ix) any Contract that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and with any Person outstanding obligations as of the date of this Agreement that are material to the Company or entity any of its Subsidiaries;
(x) other than arrangements entered into in the ordinary course of business, (A) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries, and (B) any strategic alliance, collaboration, co-promotion or research and development project Contract, which, in any geographic area or during any period the case of time in a manner that clause (B), is material to the Company and its Subsidiaries, taken as a whole;
(vxi) any material Contract entered into after June 30expressly limiting or restricting the ability of the Company or any of its Subsidiaries to (A) make distributions or declare or pay dividends in respect of their capital stock, 2011 or not yet consummatedpartnership interests, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital membership interests or other equity interests of another Person;
interests, as the case may be, (viB) any Contract between or among make loans to the Company or any of its Subsidiaries, (C) pledge capital stock or other equity interests of the Company or prohibits the issuance of any guarantee or (D) grant liens on the one hand, and any property of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(viixii) any Contract between that obligates the Company or any of its Subsidiaries and to make any director loans, advances or executive officer capital contributions to any person in excess of $250,000 individually or $1,000,000 in the Company or any Person beneficially owning five percent or more of aggregate in the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Actnext twelve (12) months;
(viiixiii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where settlement agreement (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries involving more than $50,000 or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made entered into in the ordinary course of business, which are material in each case with a former employee of the Company or any of its Subsidiaries or an independent contractor in connection with the cessation of such employee’s or independent contractor’s employment;
(xiv) any Contract that requires the Company, or any successor, to, or acquirer of the Company, to make any payment to another Person as a result of a change of control of the Company or gives another Person a right to receive or elect to receive payment from the Company in the event of a change of control of the Company;
(xv) any Contract that requires or may require (A) any severance, termination, tax gross-up or similar payment in excess of $250,000, (B) any bonus, deferred compensation or similar payment in excess of $250,000 or (C) granting or accelerating the vesting of, or otherwise modify, any equity award agreement other than accelerated vesting under the Company Stock Plans; and
(xvi) any Contract (A) granting the Company or any of its Subsidiaries any right to use any (1) Intellectual Property directly relating to the Company and Products or (2) material Intellectual Property (other than Intellectual Property covered by clause (A)(1)), in each case, other than licenses in respect of commercially available software, (B) pursuant to which the Company or one of its Subsidiaries grants any third person the right to use (except pursuant to material transfer agreements), enforce or register any (1) Intellectual Property directly related to the Company Products, or (2) material Intellectual Property (other than Intellectual Property covered by clause (B)(1)), in each case that is owned by the Company or any of its Subsidiaries, taken as a wholeincluding any license agreements, coexistence agreements and covenants not to xxx or (C) restricting the conduct right of their respective businessesthe Company or its Subsidiaries to use, register, transfer, license, distribute or enforce any material Intellectual Property that is owned by the absence Company or any of which would have a Company Material Adverse Effectits Subsidiaries. Each such Contract described All contracts of the types referred to in clauses (i) through (ixxvii) above and each such Contract that would be a Material Contract but for the exception (whether or not set forth on Section 3.20 of being filed as an exhibit to the Company SEC Reports is Disclosure Schedule) are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a “complete and correct copy of each Company Material Contract”Contract as in effect on the date of this Agreement.
(b) As Neither the Company nor any Subsidiary of the date Company is in material breach of this Agreement, except as would not have a or default under the terms of any Company Material Adverse EffectContract and, (i) each to the knowledge of the Company, no other party to any Company Material Contract is in material breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries the Subsidiary of the Company that is party thereto and, to the knowledge of the Company’s Knowledge, the of each other parties party thereto, (ii) neither and is in full force and effect, subject to the Enforceability Exceptions. There are no material disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract. Neither the Company nor any of its Subsidiaries nor, to has received any written notice of the Company’s Knowledge, intention of any other party thereto is in breach or violation of, or default under, to any Company Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of terminate for default, termination convenience or cancellation under otherwise any such Company Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Endologix Inc /De/), Merger Agreement (TriVascular Technologies, Inc.)
Material Contracts. (ai) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to As of the date of this Agreement, as neither NYBOT nor any of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(iA) any lease of real or personal property providing for annual rentals of $250,000 or more;
(B) any Contract that would be required is reasonably likely to be filed by the Company pursuant require either (x) annual payments to Item 4 or from NYBOT and its Subsidiaries of the Instructions more than $250,000 or (y) aggregate payments to Exhibits or from NYBOT and its Subsidiaries of Form 20-F under the Exchange Actmore than $250,000;
(iiC) other than with respect to any Contract involving the payment or receipt of amounts entity that is wholly-owned by the Company NYBOT or any wholly-owned Subsidiary of its SubsidiariesNYBOT, any partnership, joint venture or other similar agreement or arrangement relating to material Indebtedness (other than the formation, creation, operation, management or control of any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material partnership or joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company to NYBOT or any of its Subsidiaries or in which NYBOT owns any interest;
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of NYBOT) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) (i) in excess of $100,000 or (ii) that would not be included in the calculation of the Closing Cash Amount pursuant to Section 4.7;
(E) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which NYBOT or its Subsidiaries (or, after the Effective Time, ICE or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business (including, without limitation, any Contract that purports to limit in any material respect NYBOT’s or its Subsidiaries’ ability to employ an electronic trading platform); (II) could require the disposition of any material assets or line of business of NYBOT or its Subsidiaries or, after the Effective Time, ICE or its Subsidiaries, (III) grants “most favored nation” status that, following the Merger, would apply to ICE and its Subsidiaries, including NYBOT and its Subsidiaries or (IV) prohibits or limits the right of NYBOT or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeIntellectual Property rights;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(viF) any Contract between or among the Company to which NYBOT or any of its Subsidiaries, on Subsidiaries is a party containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of the one hand, and any of their respective Affiliates (other than the Company party or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its SubsidiariesAffiliates;
(viiG) any Contract between the Company providing for indemnification by NYBOT or any of its Subsidiaries of any Person, except for any such Contract that is (x) not material to NYBOT or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viiiy) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made entered into in the ordinary course of business;
(H) any Contract that contains a put, call or similar right pursuant to which are material NYBOT or any of its Subsidiaries could be required to the Company and its Subsidiariespurchase or sell, taken as a wholeapplicable, any equity interests of any Person or the conduct of their respective businesses, or the absence of which would assets that have a Company fair market value or purchase price of more than $100,000; and
(I) any other (i) Contract or (ii) group of related Contracts with the same counterparty (or affiliates of the such counterparty) or entered into pursuant to a master agreement that, in each case, if Table of Contents terminated or subject to a default by any party thereto, would, individually or in the aggregate, reasonably be expected to result in a NYBOT Material Adverse Effect. Each such Contract Effect (the Contracts described in clauses (iA) through – (ixI), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(ii) above A copy of each Material Contract has previously been delivered to ICE and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation agreement of NYBOT or one of its Subsidiaries, as the Company or its Subsidiaries party thereto andcase may be, to the Company’s Knowledgeand is in full force and effect, the other parties thereto, (ii) and neither the Company NYBOT nor any of its Subsidiaries nor, to the Company’s Knowledgeknowledge of NYBOT, any other party thereto is in default or breach or violation of, or default under, in any Material Contract and no event has occurred or not occurred through respect under the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction terms of any third partysuch agreement, that with notice contract, plan, lease, arrangement or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractcommitment.
Appears in 2 contracts
Samples: Merger Agreement (Intercontinentalexchange Inc), Merger Agreement (Intercontinentalexchange Inc)
Material Contracts. (a) Except for this Agreement as set forth in Section 3.19 of the Issuer Disclosure Schedule or filed in Issuer’s periodic reports filed with the SEC and except for Contracts filed as exhibits to the Company SEC Reports filed publicly available at least two Business Days prior to the date of this Agreement, as of the date hereof, none neither Issuer nor any of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required (A) relating to be filed by the Company employment of, or the performance of services by, any director, employee or consultant, (B) the terms of which obligate or may in the future obligate Issuer or any of its Subsidiaries to make any severance, termination or similar payment to any current or former employee, (C) pursuant to Item 4 which Issuer or any of the Instructions its Subsidiaries may be obligated to Exhibits of Form 20-F under the Exchange Actmake any bonus or similar payment to any current or former employee or director or (D) that is a Collective Bargaining Agreement;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to any partnership, joint venture, strategic alliance, collaboration, material Indebtedness (research and development project or other than any Indebtedness solely between the Company and any of its Subsidiaries)similar arrangement;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside Contract (excluding licenses for commercial off the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company shelf computer software that are generally available on nondiscriminatory pricing terms) pursuant to which Issuer or any of its Subsidiaries with (A) obtains the right to use, or a covenant not to be sued under, any third partyIntellectual Property Right or (B) grants the right to use, or a covenant not to be sued under, any Intellectual Property Right;
(iv) any Contract with any Governmental Authority;
(v) any Contract with sole-source or single-source suppliers of material tangible products or services or pursuant to which either Issuer or any of its Subsidiaries has agreed to purchase a minimum quantity of goods relating to any product or product candidate or has agreed to purchase goods relating to any product or product candidate exclusively from a certain party;
(vi) any Contract (A) that limits relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of any Product or (B) that otherwise provides for the purchase or sale of products or services by Issuer or any of its Subsidiaries in excess of $100,000;
(vii) any stockholders, investors rights, registration rights, tax receivables or similar or related Contract or arrangement;
(viii) any Contract containing “most favored nation” or similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right;
(ix) any Contract (A) that obligates Issuer (together with its Subsidiaries) to make aggregate payments in excess of (x) $100,000 in the current or any future calendar year or (y) $250,000 in the aggregate, (B) related to an acquisition or divestiture that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations) or (C) pursuant to which Issuer or any of its Subsidiaries has continuing obligations or interests involving the payment of royalties or other amounts calculated based upon the revenues or income of Issuer or any of its Subsidiaries or any other material contingent payment obligations, in each case that is not terminable by Issuer or its Subsidiaries without penalty without more than 60 days’ notice;
(x) any Lease, except as identified on Section 3.14(b) of the Issuer Disclosure Schedule;
(xi) any Contract that provides for indemnification of any current or former officer, director or employee;
(xii) any Contract for the disposition of all or any significant portion of the assets or business of Issuer or any of its Subsidiaries or for the acquisition, directly or indirectly, of a material portion of the assets or business of any other Person (whether by merger, sale of stock or assets or otherwise);
(xiii) any Contract relating to indebtedness for borrowed money, any guarantees thereof or the granting of Liens over the property or assets of Issuer or any of its Subsidiaries;
(xiv) any Contract relating to any loan or other extension of credit made by Issuer or any of its Subsidiaries;
(xv) any Contract containing any provision or covenant limiting in any material respect the ability of the Company Issuer or any of its Subsidiaries to (A) sell any products or services of or to any of their respective employees to compete other Person or in any material geographic region, (B) engage in any line of business or (C) compete with or to obtain products or services from any Person, or limiting the ability of any Person to provide products or entity services to Issuer or any of its Subsidiaries;
(xvi) any Contract requiring Issuer, or any successor thereto or acquirer thereof, to make any payment whether severance or otherwise to another Person related to, in connection with, or as a result of a change of control of Issuer (a “Change of Control Payment”) or that gives a Third Party a right to receive or elect to receive a Change of Control Payment; or
(xvii) any geographic area “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K) or during any period of time in a manner other Contract that is material to the Company Issuer and its Subsidiaries, taken as a whole;whole (all Contracts of the type described in this Section 3.19(a) being referred to herein as “Material Contracts”).
(vb) any material Contract entered into after June 30Issuer has made available to Purchaser prior to the date hereof a true, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) correct and complete copy of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;each Material Contract.
(vii) any Contract between or among Each of the Company or Material Contracts is valid, binding and in full force and effect and (ii) neither Issuer nor any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the CompanyIssuer’s Knowledge, any other party thereto is to a Material Contract, has breached or violated in breach or violation any material respect any provision of, or default undertaken or failed to take any act which, any Material Contract and no event has occurred with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time time, or both both, would constitute a breach or violation of, or a default under, any Material Contract and (iii) to under the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice provisions of default, termination or cancellation under any such Material Contract, and neither Issuer nor any of its Subsidiaries has received notice that it has breached, violated or defaulted in any material respect under any Material Contract.
Appears in 2 contracts
Samples: Stock Purchase Agreement (ONCOSEC MEDICAL Inc), Stock Purchase Agreement (ONCOSEC MEDICAL Inc)
Material Contracts. (a) Except for this Agreement For all purposes of and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of under this Agreement, as of the date hereof, none of the Company a “Material Contract” means any oral or its Subsidiaries is a party to or bound bywritten:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Act, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to Company and its Subsidiaries, taken as whole;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries(in each case, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the under which Company or any of its Subsidiaries has continuing obligations) with any third party;
(iv) any Contract that limits in any material respect the ability officer, director or employee of the Company or any of its Subsidiaries or member of the Company Board providing for (A) an annual base salary in excess of $200,000, (B) material severance or termination pay liabilities of Company or any of their respective employees its Subsidiaries related to compete termination of employment or (C) indemnification by Company or any of its Subsidiaries of any officer, director or employee of Company or any of its Subsidiaries;
(iii) Benefit Plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the consummation of the Merger or the value of any of the benefits of which will be calculated on the basis of the Merger;
(iv) Contract relating to or evidencing (A) Indebtedness in any material line excess of $10,000,000, other than loans to direct or indirect wholly owned Subsidiaries, in each case in the ordinary course of business consistent with past practice and equipment leases entered into in the ordinary course of business or with (B) Liens upon any Person material part of the owned assets or entity or in any geographic area or during any period owned properties of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) Contract pursuant to which Company or any material Contract entered into after June 30of its Subsidiaries has guaranteed any obligations or liabilities (whether absolute, 2011 accrued, contingent or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamationotherwise) of assets (any other Person, which guarantee obligation exceeds $1,500,000, other than assets purchased pursuant to capital expenditures) or share capital or other equity interests guarantees by Company for obligations of another Personits wholly owned Subsidiaries;
(vi) Any limited liability company agreement, partnership, joint venture or other similar Contract relating to the formation, creation, operation or management of any limited liability company, partnership or joint venture, other than any such limited liability company, partnership or joint venture that is a wholly owned Subsidiary of Company;
(vii) Contract between for capital expenditures or among the acquisition or construction of fixed assets which requires aggregate future payments that would reasonably be expected to be in excess of $2,000,000 during any twelve-month period;
(viii) Contract that (A) limits or purports to limit in any material respect the ability of Company or any of its Affiliates to compete in any line of business or with any Person or in any geographic area or during any period of time or to develop, market, sell, distribute or otherwise exploit business of Company, (B) grants exclusive rights of any type or scope or rights of first refusal, rights of first negotiation or similar rights or terms to any Person, (C) requires Company or any of its Affiliates to use any supplier or third party for all or substantially all of any of its material requirements or needs in any respect, (D) limits or purports to limit in any material respect the ability of Company or any of its Affiliates to solicit any customers or clients of the other parties thereto, or (E) requires Company or any of its Affiliates to provide to the other parties thereto “most favored nations” status or similar best price rights;
(ix) Contract providing for “earn-outs,” “performance guarantees” or other similar contingent payments by Company or any Subsidiary that would reasonably be expected to be in excess of $1,000,000 during any future twelve-month period;
(x) Contract under which (A) a federal Governmental Entity procures supplies or services from Company or any of its Subsidiaries or provides a grant to Company or any of its Subsidiaries, or any subcontract to such a Contract or (B) a state Governmental Entity procures supplies or services from Company or any of its Subsidiaries or provides a grant to Company or any of its Subsidiaries, or any subcontract to such a Contract, that involves aggregate payments by or to Company or any of its Subsidiaries in excess of $1,000,000;
(xi) Contract between Company or any wholly owned Subsidiary of Company, on the one hand, and any of their respective Affiliates (other than the another Subsidiary that is not wholly owned or Company or any of its Subsidiaries)Minority Interest Business, on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(viixii) Contract entered into on or after March 27, 2009 relating to the acquisition or disposition of any business or any assets (whether by merger, sale of stock or assets or otherwise) in an amount in excess of $10,000,000 or under which there remain any representations, covenants, indemnities or other obligations (including indemnification or other contingent obligations) that are in effect and material to Company;
(xiii) Contract between for which the principal purpose is the ownership, use or licensing of any Intellectual Property by or to Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting non-exclusive (i) off-the-shelf or other commercially available software licenses with annual payments of less than $1,000,000 cumulatively per software title or (ii) licenses to Marks, Copyrights, software or similar items embedded in or included on equipment or products sold by Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made granted in the ordinary course of businessbusiness consistent with past practice);
(xiv) Contract with any of Company’s 10 most material suppliers (measured based on aggregate payments by Company to such suppliers during the twelve month period ended August 31, which are material to 2012); and
(xv) Contracts (other than Contracts of the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract type described in clauses subclauses (i) through (ixxiv) above above) that involve aggregate payments by or to Company or any of its Subsidiaries in excess of $5,000,000 during any twelve-month period or in excess of $10,000,000 in the aggregate during the term of such Contract, other than purchase or sales orders or other Contracts that, in each case, were entered into in the ordinary course of business consistent with past practice and each such Contract that would be a Material Contract but for the exception are terminable or cancelable by Company or any of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”its Subsidiaries without penalty or liability on 90 days’ notice or less.
(b) As Section 3.17(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or by which Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound as of the date hereof. True and complete copies of this Agreementeach Material Contract (including any material amendments, except waivers or modifications thereto) in existence as of the date hereof have been delivered or made available by Company to Parent prior to the date hereof.
(c) Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the on Company or its Subsidiaries (and/or each Subsidiary party thereto andthereto) and is in full force and effect, to the Company’s Knowledge, the other parties thereto, (ii) and neither the Company nor any of its Subsidiaries party thereto, nor, to the knowledge of Company’s Knowledge, any other party thereto thereto, is in breach or violation of, or default under, any such Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would reasonably be expected to (i) constitute such a breach or violation ofdefault thereunder by Company or any of its Subsidiaries party thereto, or, to the knowledge of Company, any other party thereto; or (ii) give any Person the right to declare a default, accelerate the maturity or performance of any Material Contract, or default undercancel, terminate or modify any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (McKesson Corp), Merger Agreement (PSS World Medical Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts All Contracts, including amendments thereto, required to be filed as exhibits an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Other than the Contracts described in Section 3.18(a) and any Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company SEC Reports filed prior pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC, Section 3.18(b) of the Company Disclosure Letter sets forth a complete list, and the Company has made available to Parent true and complete copies, of each Contract to which the Company or any of the Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are subject (other than any of the foregoing between the Company and any of the Company Subsidiaries or between any wholly-owned Company Subsidiaries), as of the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound bythat:
(i) constitutes a partnership, joint venture or similar arrangement that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii) evidences the creation, incurrence, assumption or guarantee of Indebtedness of the Company or any Company Subsidiary in an amount in excess of $1,000,000 (except for such Indebtedness between the Company and any of the Company Subsidiaries or between the Company Subsidiaries, guarantees by the Company of Indebtedness of any of the Company Subsidiaries and guarantees by any of the Company Subsidiaries of Indebtedness of the Company or any other Company Subsidiary);
(iii) is a Contract with an affiliate that would be required to be filed by the Company pursuant to disclosed under Item 4 404(a) of the Instructions to Exhibits of Form 20Regulation S-F K promulgated under the Exchange Act;
(iiiv) grants any Contract involving rights of first refusal, rights of first negotiation or other similar rights to any person with respect to the payment or receipt sale of amounts by the Company or any material operating unit of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 would materially restrict the ability of Parent or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets its Subsidiaries (other than assets purchased pursuant the Surviving Corporation and its Subsidiaries) following the Effective Time to capital expenditures) compete in any line of business that is material to Parent or share capital its Subsidiaries or other equity interests of another Person;in any geographic territory that is material to Parent and its Subsidiaries; or
(vi) any is a mortgage, pledge, security agreement, deed of trust or other Contract between or among the Company or any of its Subsidiariesgranting a Lien, other than a Permitted Lien, on the one hand, and any of their respective Affiliates (other than the Company material property or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer asset of the Company or any Person beneficially owning five percent or more of the outstanding Shares Company Subsidiary (other than any such item that relates to Indebtedness that is not required to be disclosed pursuant to Item 7B listed by Section 3.18(b)(ii)). Each Contract described in Section 3.18(a) or Item 19 of Form 20-F under the Exchange Act;
(viiiSection 3.18(b) any Contract (other than Contracts granting Company Options) giving that is not terminable by the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries parties thereto on 90 days’ or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports less notice is referred to herein in this Agreement as a “Company Material Contract.”.
(bc) As Neither the Company nor any Company Subsidiary is in breach of or default under the date terms of this Agreement, except as would not have a any Company Material Adverse EffectContract, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any knowledge of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation ofdefault thereunder by the Company or any Company Subsidiary, where such breach or default, individually or together with other such breaches or defaults, has had or would reasonably be expected to have a Company Material Adverse Effect. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under, under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, has had or would reasonably be expected to have a Company Material Adverse Effect. As of the date of this Agreement, each Company Material Contract is a valid and (iii) binding obligation of the Company or a Company Subsidiary that is a party thereto and, to the knowledge of the Company’s Knowledge, is in full force and effect, except for such failures as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, subject to the Bankruptcy and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractEquity Exception.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (West Marine Inc)
Material Contracts. (a) Except for this Agreement Section 3.11(a) of the Disclosure Letter contains a true and except for Contracts filed complete listing of the following contracts and other agreements to which Pecten as exhibits to the Company SEC Reports filed prior to of the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries Agreement is a party or to or bound by:
which the Assets are subject (i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of contract or agreement, along with all amendments and supplements thereto, being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”):
(i) contracts, agreements and instruments representing Indebtedness for Borrowed Money and all guarantees thereof;
(ii) contracts containing covenants limiting the freedom of Pecten to engage in any line of business or compete with any Person or operate at any location;
(iii) price swaps, xxxxxx, futures or similar instruments;
(iv) contracts to which Pecten, on the one hand, and an Affiliate of Pecten, on the other hand, is a party or is otherwise bound;
(v) contracts containing any preferential rights to purchase or similar rights relating to any Assets;
(vi) joint venture or partnership agreements, including any agreement or commitment to make any loan or capital contribution to any joint venture or partnership;
(vii) contracts relating to the acquisition or disposition by Pecten of any business (whether by acquisition or disposition of equity interests or assets) pursuant to which Pecten has or will have any remaining material obligation or liability or benefit;
(viii) contracts or agreements which, individually, require or entitle Pecten to make or receive payments of at least Five Hundred Thousand Dollars ($500,000) annually, provided that the calculation of the aggregate payments for any such agreement or contract shall not include payments attributable to any renewal periods or extensions for which Pecten may exercise a renewal or extension option in its sole discretion;
(ix) contracts relating to the storage, transportation, treating, sale, or purchase of hydrocarbons, or the provision of services related thereto; and
(x) licenses relating to Intellectual Property (whether as licensee or licensor) other than licenses with respect to software used or accessed by Pecten under a “shrink wrap,” “click wrap,” or “off the shelf” software license that is generally commercially available on standard terms.
(b) As Subject to regulatory requirements of the date which SHLX has been informed, SPLC has made available to SHLX a correct and complete copy of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.listed on Section 3.11(a)
Appears in 2 contracts
Samples: Contribution Agreement (Shell Midstream Partners, L.P.), Contribution Agreement
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, Schedule 4.13(a) sets forth as of the date hereofhereof an accurate, none correct and complete list of all Seller Contracts to which any of the Company or its Subsidiaries is a party to or bound by:descriptions set forth below apply (the “Material Contracts”):
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange ActReal Property Leases, Personal Property Leases and IP Licenses;
(ii) any Any outstanding Contract involving for capital expenditures or for the payment purchase of goods or receipt services for the Business in excess of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)$25,000;
(iii) Any joint venture, partnership, cooperative arrangement or any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business Contract involving a sharing of profits, losses, costs or liabilities by the Company or profits primarily relating to any of its Subsidiaries with any third partythe Purchased Assets or the Business;
(iv) Any advertising Contract not terminable without payment or penalty on thirty (30) days (or less) notice;
(v) Any Contract granting or receiving any right, title or interest in or to real property;
(vi) Any Contract with any Governmental Authority that limits in any material respect the ability of the Company directly applies to Business or any of its Subsidiaries the Purchased Assets;
(vii) Any Contract with respect to the discharge, storage or removal of effluent, waste or pollutants primarily relating to the Business or any of their respective employees the Purchased Assets;
(viii) Any Contract relating to any license or royalty arrangement that directly applies to the Business or any of the Purchased Assets;
(ix) Any power of attorney, proxy or similar instrument;
(x) Any Contract for the manufacture, service or maintenance of any Seller Product;
(xi) Any requirement or output Contract with respect to the Seller Products;
(xii) Any Contract to indemnify any Person or to share in or contribute to the liability of any Person;
(xiii) Any Contract containing covenants not to compete in any material line of business or with any Person or entity or in any geographic geographical area primarily relating to the Business or during any period of time the Purchased Assets or which would be binding on Purchaser or the Purchased Subsidiary after the Closing;
(xiv) Any other Contract primarily relating to the Business or any of the Purchased Assets (including current Contracts with customers of the Business), which (i) provides for payment or performance by either party thereto having an aggregate value of $50,000 or more; (ii) is not terminable without payment or penalty on thirty (30) days (or less) notice; or (iii) is between, inter alia, an Affiliate and Seller; and
(xv) Any other Contract that involves future payments, performance of services or delivery of goods or materials to or by Seller of an aggregate amount or value in a manner excess of $25,000 on an annual basis and primarily relating to the Business or any or the Purchased Assets or that otherwise is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”Business.
(b) As Seller has provided to Purchaser accurate, correct and complete copies of all Material Contracts, including all material amendments, supplements, modifications and waivers thereof.
(c) Each Material Contract is currently valid and in full force and effect, and is enforceable by Seller in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws and equitable principles related to or limiting creditors’ rights generally and by general principles of equity.
(d) (i) Seller is not in default in a material respect, and no party has notified Seller that it is in default in a material respect, under any Material Contract. No event has occurred as of the date of this Agreementhereof, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s KnowledgeKnowledge of Seller, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach no circumstance or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third partycondition exists, that will be reasonably likely to (with or without notice or lapse of time time): (A) result in a violation or both would constitute a breach or violation of, or default under, of any of the provisions by Seller of any Material Contract and Contract; (iiiB) give any Person the right to the Company’s Knowledge, the Company and its Subsidiaries have not received declare a default or exercise any written claim or notice of default, termination or cancellation remedy under any such Material Contract.;
Appears in 2 contracts
Samples: Asset Purchase Agreement (Pc Tel Inc), Asset Purchase Agreement (Smith Micro Software Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date Schedule 5.12(a) sets forth a list of this Agreement, as each of the date hereoffollowing Contracts (each, none of a “Material Contract” and, collectively, the “Material Contracts”) to which the Company or any of its Subsidiaries is a party to or by which any of them is bound by(excluding any Contract which constitutes a Lease or a Company Benefit Plan) and which:
(i) (x) involves aggregate consideration payable to the Company or any Contract that would be required to be filed of its Subsidiaries in excess of $750,000 per year, (y) involves aggregate consideration payable by the Company pursuant to Item 4 or any of its Subsidiaries in excess of $750,000 per year or (z) requires performance by any party more than one year from the Instructions to Exhibits of Form 20-F under date hereof, which, in each case, cannot be cancelled by the Exchange ActCompany or the applicable Subsidiary without material penalty upon less than one hundred eighty (180) days’ notice;
(ii) relates to the sale of the Company’s or any Contract involving of its Subsidiaries’ material assets, other than sales in the Ordinary Course of Business, having a fair market value in excess of $500,000, and which contains any material outstanding obligations of the Company or any of its Subsidiaries with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or receipt material indemnification obligation;
(iii) relates to the acquisition by the Company or any of amounts its Subsidiaries of any business, a material amount of stock or assets of any other Person (whether by merger, sale of stock, sale of assets or otherwise) having a fair market value in excess of $500,000, and which contains any material outstanding obligations of the Company or any of its Subsidiaries with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or material indemnification obligation;
(iv) relates to Indebtedness incurred or provided by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than including any Indebtedness solely between the Company and any of its Subsidiaries)hedging contracts;
(iiiv) (A) limits in any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside respect the ordinary course freedom of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries or their respective Affiliates (or, after the Closing, Parent and its Affiliates) to engage in any line of business, acquire any entity or compete with any third party;
(iv) any Contract that limits Person or in any market or geographical area, (B) contains exclusivity obligations or similar restrictions binding on and material respect the ability of to the Company or any of its Subsidiaries or any of their respective employees Affiliates (or, after the Closing, Parent and its Affiliates) or that would be binding on Parent or any of its Affiliates (or, after the Closing, Parent and its Affiliates), (C) grants a most-favored nation status to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time Person, in a manner that is material is, or would reasonably be expected to the Company and its Subsidiariesbe, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (BD) otherwise materially restricts the value ability of the outstanding receivables due Company or any of its Subsidiaries (or, after the Closing, Parent and its Affiliates) to solicit or hire any person or solicit business from any Person;
(vi) constitutes a partnership or joint venture agreement or teaming agreement or other similar agreement involving a sharing of profits, losses, costs or liabilities of the Company and or any of its Subsidiaries under such Contract, taken as whole, that is material to with any other Person;
(vii) involves any resolution or settlement of any actual or threatened Proceeding against or involving the Company or any of its Subsidiaries since January 31, 2017, and involving aggregate payments in excess of $250,000 or other material requirements;
(viii) requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries; andSubsidiaries in an amount that, individually or in the aggregate, is greater than $500,000, excluding capital equipment ordered in the Ordinary Course of Business in accordance with the Company’s business plan;
(ix) contains any other contracts and agreements, whether standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not made in the ordinary course to acquire assets or securities of businessanother Person, which are material to would be binding on Parent and its Affiliates after the Closing;
(x) except as set forth on Schedule 5.13(a), constitutes an employment agreement with an executive officer of the Company and or provides for severance, retention, change of control or other similar payments to any employee of the Company or its Subsidiaries, taken as a whole, or the conduct Subsidiaries in excess of their respective businesses, or the absence of which would have $200,000;
(xi) constitutes a Company Material Adverse Effect. Each such Contract IP Agreement; or
(xii) constitutes a commitment to do any of the foregoing described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”xi).
(b) As of the date of this Agreement, except Except as would not have a Company Material Adverse Effectset forth in Schedule 5.12(b), (i) each Material Contract is a legal, valid and binding obligation none of the Company or its Subsidiaries applicable Subsidiary that is party thereto andto a Material Contract, nor, to the Knowledge of the Company’s Knowledge, the any other parties theretoparty to such Material Contract, is in material breach or material default under such Material Contract, and (ii) neither the Company nor any of its Subsidiaries norhas received (x) any written notice of any default or event that, to with or without notice or the Company’s Knowledge, any other party thereto is in breach or violation oflapse of time, or default underboth, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach default by the Company or violation ofits applicable Subsidiary that is party thereto under any Material Contract, except for defaults that, individually or in the aggregate, have not had or would not reasonably be expected to have a Material Adverse Effect, or default under, any Material Contract and (iiiy) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under of any such Material Contract. The Company has made available to Parent true and complete copies of all Material Contracts.
(c) Except as set forth in Schedule 5.12(c), each Material Contract is in full force and effect, is a valid and binding obligation of the Company or its applicable Subsidiary that is party thereto, and to the Knowledge of the Company, each other party thereto, and is enforceable in all material respects in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(d) The Company shall have until the end of the sixth (6th) Business Day following the date hereof to deliver to Parent an amended version of Schedule 5.12(a), with effect as of the execution of this Agreement. Such amended Schedule 5.12(a) shall for all purposes of this Agreement constitute the disclosures of the Company against Section 5.12(a) as if the disclosures in such amended Schedule 5.12(a) were made as of the execution of this Agreement. The delivery of an amended Schedule 5.12(a) shall in no event have the effect of or be construed as affecting the timing of any representation or warranty made by the Company.
Appears in 2 contracts
Samples: Merger Agreement (BakerCorp International, Inc.), Merger Agreement (United Rentals North America Inc)
Material Contracts. (a) Except for this Agreement Agreement, the Company Benefit Plans and except for Contracts agreements filed as exhibits to the Company SEC Reports filed prior to Documents, as of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving that (A) expressly imposes any material restriction on the payment right or receipt ability of amounts by the Company or any of its Subsidiaries to compete with, or acquire or dispose of the securities of, any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries, in an amount in excess of $25 million;
(iv) any joint venture, partnership or limited liability company agreement or other Contract relating to material Indebtedness (the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any Indebtedness such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries)Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(iiivi) any material joint venture contracts, strategic cooperation, partnership arrangements acquisition Contract that contains “earn out” or other agreements outside contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the ordinary course of business involving a sharing of profits, losses, costs or liabilities date hereof by the Company or any of its Subsidiaries with any third partyin excess of $25 million;
(ivvii) any Labor Agreement;
(viii) any Contract that limits is a settlement, conciliation or similar agreement with any Governmental Entity and pursuant to which the Company or any of its Subsidiaries will have a material outstanding obligation after the date of this Agreement;
(ix) any Contract that obligates the Company or any Subsidiary for more than one (1) year, is not terminable without penalty upon notice of ninety (90) days or less and has total projected revenue of at least $50 million;
(x) any Contract that involves a take or pay amount of at least $25 million;
(xi) the Company Real Property Leases;
(xii) any Contract pursuant to which the Company or any of its Subsidiaries (A) is granted a license to use any third-party Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole, other than (i) shrink-wrap, click-wrap and off-the shelf Software licenses, and (ii) any other non-exclusive licenses for Software that is commercially available generally or (B) grants to a third party a license to use any Intellectual Property owned by the Company or any of its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole, other than non-exclusive licenses granted in the ordinary course of business; and
(xiii) any material respect the ability Contracts or arrangements containing a non-compete or similar type of provision that limit or otherwise restrict the Company or any of its Subsidiaries or any of their respective employees to compete Affiliates or any successor thereto, and that would reasonably be expected to, after the Effective Time, limit or restrict Sodium or any of its Affiliates (including the Company and its Subsidiaries following the Closing) or any successor thereto, from (A) engaging or competing in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiariesor (B) making, taken as a whole;
(v) selling or distributing any material Contract entered into after June 30products or services, 2011 or not yet consummatedusing, for the acquisition transferring or dispositiondistributing, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and enforcing any of their respective Affiliates (other than the Company or rights with respect to, any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, material assets or properties. All contracts of the absence of which would have a Company Material Adverse Effect. Each such Contract described types referred to in clauses (i) through (ixxiii) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is are referred to herein as a “Company Material ContractContracts.”.
(b) As of the date of this Agreement, except Except as would not have have, individually or in the aggregate, a Company Material Adverse Effect, : (i) neither the Company nor any Subsidiary of the Company that is a party thereto is in breach of or default under the terms of any Company Material Contract; (ii) to the Company’s knowledge, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, no event has occurred that, with or without notice or lapse of time, or both would constitute a material breach of or material default under, or give rise to a right of termination, cancellation or acceleration of any material obligation under any Company Material Contract; and (iii) each Company Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries the Subsidiary of the Company that is party thereto and, to the Company’s Knowledgeknowledge, the of each other parties party thereto, and is in full force and effect, subject to the Remedies Exceptions. A copy of each Company Material Contract has previously been made available to Sodium (ii) neither including via the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractSEC Documents).
Appears in 2 contracts
Samples: Merger Agreement (ChampionX Corp), Merger Agreement (Schlumberger Limited/Nv)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as As of the date hereof, none Seller has made available true and complete copies, together with all amendments, supplements and modifications thereto (or, with respect to any oral Contracts, true and complete written descriptions) of all Contracts to which Seller (or, insofar as it relates to the Company or Business, any of its Subsidiaries Affiliates) is a party that relate to or bound bythe Business and has set forth such Contracts in Section 4.10(a) of the Seller Disclosure Schedule (the “Material Contracts”) under the following categories:
(i) mortgages, notes, debentures, indentures, letters of credit, loan agreements and any Contract that would be required other Contracts related to be filed by any Indebtedness to which the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange ActAcquired Assets have been encumbered;
(ii) any Contract involving guarantees to the payment or receipt Contracts listed in Section 4.10(a)(i) of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)Seller Disclosure Schedule;
(iii) any material joint venture contractsContract that (A) grants any rights to Manufacture, strategic cooperation, partnership arrangements sell or other agreements outside the ordinary course distribute Quill™ or (B) grants “most favored nation” status or equivalent preferential pricing terms of business involving a sharing of profits, losses, costs or liabilities by the Company or Quill™ to any of its Subsidiaries with any third partyPerson;
(iv) Contracts with suppliers of any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company Raw Materials and its Subsidiaries, taken as a wholepackaging components for Quill™;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, Contracts for the acquisition purchase of inventories, equipment, Raw Materials, supplies, services or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant utilities related to capital expenditures) or share capital or other equity interests of another PersonQuill™;
(vi) any Contract between royalty Contracts (whether relating to Seller Patents, Quill™ Know-How or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its SubsidiariesAcquired Intellectual Property rights), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B which a Seller Party (A) has acquired any license or Item 19 of Form 20-F under the Exchange Actother right to use any Acquired Intellectual Property, or (B) has granted to any Third Party any license or other right to use any Acquired Intellectual Property;
(viii) distributor Contracts for Quill™ (the “Distributor Contracts”);
(ix) supply and/or distribution Contracts for Quill™;
(x) product development Contracts, research and development Contracts, collaboration Contracts, in each case, related to Quill™;
(xi) Contracts restricting any Seller Party or any Affiliate from developing, Manufacturing or Commercializing Quill™ or limiting the freedom of any Seller Party to engage in any line of business or to compete with any other Person in any geographical area with respect to Quill™;
(xii) any collective bargaining agreement or other Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement with any labor organization, union or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiariesassociation; and
(ixxiii) any other contracts and agreements, whether or not made in outstanding written commitment to enter into any agreement of the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract type described in clauses subsections (i) through (ixxii) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”this Section 4.10(a).
(b) As The applicable Seller Party has performed all obligations required to be performed by it under the Material Contracts, and none of the date Seller Parties is in breach of this Agreementor default under the terms of any Material Contract, except as where such failure to perform or such breach or default has not had and would not have, individually or in the aggregate, a Material Adverse Effect on the Business. No Seller Party has received any written notice from any counterparty to any Material Contract that such counterparty intends to terminate such Material Contract where such termination would have a Company Material Adverse EffectEffect on the Business. To the Knowledge of Seller, (i) each other party to the Material Contracts has performed all obligations required to be performed by it under the Material Contracts, and no other party to any Material Contract is in breach of or default under the terms of any Material Contract, except where such failure to perform or such breach or default has not had and would not have, individually or in the aggregate, a Material Adverse Effect on the Business. Assuming due authorization, execution and delivery by each counterparty to each of the Material Contracts, each Material Contract is a legal, valid and binding obligation of the Company or Seller Parties, as applicable, enforceable in accordance with its Subsidiaries party thereto terms, and, to the Company’s KnowledgeKnowledge of Seller, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach full force and effect, except as has not had and would not have, individually or violation ofin the aggregate, a Material Adverse Effect on the Business or default underexcept as may be limited by Bankruptcy Laws and other similar Laws of general applicability relating to or affecting creditors’ rights, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractgeneral equitable principles.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement (Angiotech Pharmaceuticals Inc), Asset Sale and Purchase Agreement (Angiotech Pharmaceuticals Inc)
Material Contracts. (a) Except for this Agreement and except for All Contracts required to be filed as exhibits to the Company Ouster SEC Reports Documents have been so filed prior to in a timely manner. Section 4.16(a) of the date of this AgreementOuster Disclosure Schedule sets forth a true and complete list, as of the date hereof, none of each of the Company following Contracts, excluding any Ouster Benefit Plans, to which Ouster or any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company which Ouster or any of its Subsidiaries or any of their respective employees assets or businesses are bound (and any amendments, supplements and modifications thereto):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) any Contract that materially limits the ability of Ouster or any of its affiliates (including, following the consummation of the Transactions, the Surviving Company and its affiliates) to engage or compete in any material line of business or with any Person or entity or in any geographic area area;
(iii) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(iv) any Contract or during any period series of time related Contracts relating to indebtedness for borrowed money (A) in a manner excess of $2,000,000 or (B) that is material to the Company becomes due and its Subsidiaries, taken payable as a wholeresult of the Transactions;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) which a third party has licensed or share capital granted any right to Ouster or other equity interests any of another Personits Subsidiaries in any material Intellectual Property (the “Ouster In-Licenses”);
(vi) any Contract between pursuant to which both Ouster or among any of its Subsidiaries and a third party have licensed or granted substantially portfolio-wide rights in their respective Patents or other material Intellectual Property to one another (excluding licenses granted in the Company ordinary course of business by a customer to Ouster or any of its Subsidiaries with respect to derivative works, improvements or modifications made by such third party to, or any implementations by such third party of, any product or technology provided to such third party by Ouster or any of its Subsidiaries, on ) (the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries“Ouster IP Cross-Licenses”), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any material Contract between the Company pursuant to which Ouster or any of its Subsidiaries and has granted any director third party any rights or executive officer of the Company licenses, other than Ordinary Course Licenses, with respect to any Ouster Intellectual Property or any Person beneficially owning five percent material product or more of the outstanding Shares required technology owned or purported to be disclosed pursuant to Item 7B owned by Ouster or Item 19 any of Form 20its Subsidiaries (the “Ouster Out-F under Licenses,” and collectively with the Exchange ActOuster In-Licenses and Ouster IP Cross-Licenses, the “Ouster IP Contracts”);
(viii) any Contract reasonably expected to result in payments in excess of $2,000,000 in any twelve (other than Contracts granting Company Options12) giving month period after the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andClosing Date;
(ix) any purchase, sale or supply contract that contains material volume requirements or commitments, exclusive or preferred purchasing, distribution or marketing arrangements for a material period of time, most favored nation status or similar provisions or promotional requirements, other contracts than any such Contracts that are not material to Ouster and agreementsits Subsidiaries;
(x) any Ouster Real Property Lease reasonably expected to result in payments in excess of $1,000,000 in any twelve (12) month period after the Closing Date;
(xi) any agreement that grants any right of first refusal or right of first offer or similar right or put, whether call or similar right or that limits or purports to limit the ability of Ouster or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses (in any case, in excess of $2,000,000);
(xii) any acquisition or divestiture agreement (A) entered into since October 1, 2020, with a purchase price in excess of $5,000,000 or (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to exceed $2,000,000 (including indemnification obligations) that have not made been satisfied in full as of the ordinary course date hereof;
(xiii) any agreement that by its terms prohibits or limits the payment of businessdividends or other distributions by Ouster or any of its Subsidiaries;
(xiv) any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of revenues, profits, losses, costs or liabilities by Ouster with any other Person or any of its Subsidiaries;
(xv) any “single source” supply Contract pursuant to which goods or materials that are material to the Company and Ouster or any of its Subsidiaries, taken as a whole, Subsidiaries are supplied to Ouster or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Subsidiary from an exclusive source; or
(xvi) any Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”with any Governmental Entity.
(b) As Ouster has heretofore made available to Velodyne true, correct and complete copies of the date of this Agreement, except Contracts set forth in Section 4.16(a).
(c) Except as has not had and would not have a Company reasonably be expected to have, individually or in the aggregate, an Ouster Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation all Contracts set forth or required to be set forth in Section 4.16(a) of the Company Ouster Disclosure Schedule or filed or required to be filed as exhibits to the Ouster SEC Documents (the “Ouster Material Contracts”) are valid, binding and in full force and effect and are enforceable by Ouster or its Subsidiaries party thereto applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) Ouster, or its applicable Subsidiary, has performed all obligations required to be performed by it under the Ouster Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the Company’s KnowledgeKnowledge of Ouster, the no other parties theretoparty to any Ouster Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, (iiiii) since October 1, 2021, neither the Company Ouster nor any of its Subsidiaries norhas received written notice of any actual, to the Company’s Knowledgealleged, any other party thereto is in breach possible or potential violation of, or default underfailure to comply with, any term or requirement of any Ouster Material Contract Contract, and no event has occurred or not occurred through the Company’s or (iv) neither Ouster nor any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not has received any written claim or notice of defaultthe intention of any party to cancel, termination terminate, materially change the scope of rights under or cancellation under fail to renew any such Ouster Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Velodyne Lidar, Inc.), Merger Agreement (Ouster, Inc.)
Material Contracts. (a) Except for this Agreement The Company and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is are not a party to or bound by:by any of the following Contracts except as described in or filed as an exhibit to the Company SEC Documents (each, including any such Contracts listed in the Company SEC Documents, a “Material Contract,” and collectively, the “Material Contracts”):
(i) i. any Contract that would be required mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to be filed the borrowing of money or extension of credit to or by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its SubsidiariesCompany, or relating to material Indebtedness (other than any Indebtedness solely between the Company accounts receivables and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside payables in the ordinary course of business involving a sharing and travel and similar advances to employees in the ordinary course of profitsbusiness consistent with past practice;
ii. any joint venture, lossespartnership, costs limited liability company, strategic alliance or liabilities other similar Contract relating to the formation, creation, operation, management or control of any partnership or joint venture;
iii. any Contracts relating to all mergers, consolidations, recapitalizations, reorganizations or similar transactions, or any acquisitions or dispositions material to the Company, currently contemplated by the Company or that provide any ongoing material liabilities for payment of its Subsidiaries with any third partymoney, retention of liabilities, assets sold, indemnification or otherwise;
(iv) . any Contract providing for the payment by the Company or the Company Subsidiaries of an amount in excess of $150,000 or to the Company or the Company Subsidiaries of an amount in excess of $150,000;
v. non-competition, non-solicitation or exclusive dealing Contracts or other Contracts that limits restrict or limit or purport to restrict or limit in any material respect the ability of the Company or any of its Subsidiaries Affiliates to solicit customers, potential employees or any the manner or location in which the business of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiariesmay be conducted;
(vii) vi. any Contract between the Company or any benefits of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to which will be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or increased by the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries transactions contemplated hereby or (B) the value of any of the outstanding receivables due to benefits of which will be calculated on the Company and its Subsidiaries under such Contract, taken as whole, that is material to basis of any of the Company and its Subsidiariestransactions contemplated by this Agreement; andor
(ix) vii. any other contracts and agreementsContract the termination of which, whether or not made default under which, would, individually or in the ordinary course of businessaggregate, which are material have or reasonably be expected to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of Contracts to which the Company or its Subsidiaries any Company Subsidiary is a party thereto andis in full force and effect, and to the knowledge of the Company’s Knowledge, the other parties party thereto. Neither the Company, (ii) neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company’s Knowledge, any other party thereto to a Material Contract to which the Company or any Company Subsidiary is a party, is in breach or violation of, or in default under, any such Material Contract to which it is a party and no event has occurred that, individually or not occurred through in the Company’s or any of its Subsidiaries’ action or inaction oraggregate, to with the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or the giving of notice or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to thereunder by the Company’s Knowledge, the Company and its Subsidiaries have not received or, to the knowledge of the Company, by any written claim or notice of default, termination or cancellation under any such Material Contractother party thereto.
Appears in 2 contracts
Samples: Preferred Stock Subscription Agreement, Preferred Stock Subscription Agreement (Lighting Science Group Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts Agreement, agreements filed as exhibits to the Company SEC Reports filed prior to Documents or as set forth in Section 3.21 of the Company Disclosure Schedules, as of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or expressly bound byby any Contract (excluding any Company Benefit Plan) that:
(i) any Contract that would be required to be filed by the Company pursuant to constitute a “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange Securities Act);
(ii) contains a non-compete, non-solicit, exclusivity or similar restriction that materially restricts the conduct of any Contract involving the payment or receipt line of amounts business by the Company or any of its Affiliates or the solicitation of any business from any third party or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its Affiliates to engage in any line of business or in any geographic region or to solicit any business from any third party;
(iii) contains a non-solicit of the employees of any entity or similar restriction that materially restricts solicitation of management-level or professional prospective hires or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its Affiliates to solicit the employment or services of any management-level or professional prospective hire (in each case, other than customary non-solicitation provisions included in non-disclosure agreements);
(iv) that is a settlement, consent or similar agreement that would require the Company or any of its Subsidiaries to pay consideration of more than $500,000 after the date of this Agreement or that contains any material continuing obligations of the Company or any of its Subsidiaries;
(v) that includes a material indemnification obligation of the Company or any of its Subsidiaries which was granted outside of the Ordinary Course of Business;
(vi) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiary could be required to sell, as applicable, any equity interests of any person or material amount of assets;
(vii) that provides any current employees, officers or directors of the Company or any Company Subsidiary with annual base compensation in excess of $275,000, other than Contracts that are terminable without penalty or notice or employment Contracts entered into on standard Governmental Entity forms;
(viii) is a Contract that involves the payment or delivery of cash or other consideration or minimum purchase obligations (by or to the Company or any Company Subsidiary) in an amount or having a value in excess of $5,000,000 in the aggregate, or contemplates or involves the performance of services (by or for the Company or any Company Subsidiary) having a value in excess of $5,000,000 in the aggregate;
(ix) is a Company Real Property Lease pursuant to which the Company or any of its Subsidiaries leases real property that is material to the business of the Company or any of its Subsidiaries;
(x) is a Contract providing for the purchase of goods or services or the development or construction of, or additions or expansions to, any property or equipment under which the Company or any Company Subsidiary has, or expects to incur, costs or obligations in excess of $5,000,000 in the aggregate;
(xi) that is material and obligates the Company or any Company Subsidiary, or will obligate the Surviving Corporation, to provide a party with “most favored nation” or “most favored customer” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(xii) provides for the formation, creation, operation, management or control of any material joint venture, partnership, strategic alliance, collaboration or other similar arrangement with a third party;
(xiii) is a Contract relating to any material Indebtedness currency or other hedging arrangement;
(xiv) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any if its Subsidiaries or any guaranty of such obligations or guarantee of obligations of any Person that is not the Company or a Subsidiary (other than any Indebtedness solely between indebtedness among the Company and and/or any of its Subsidiaries), in each case in excess of $1,000,000 individually, or $5,000,000 in the aggregate;
(iiixv) any material joint venture contracts, strategic cooperation, partnership arrangements provides for the acquisition or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities disposition by the Company or any of its Subsidiaries with of any third partybusiness (whether by merger, sale of stock, sale of assets or otherwise), or any real property, that would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of the Company of future payments (including “earnout” or other material contingent payment obligations) in excess of $1,000,000, in each case, except for purchases and sales of goods, services or inventory in the Ordinary Course of Business;
(ivxvi) obligates the Company or any Contract that Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $500,000;
(xvii) limits in any material respect or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(xviii) pursuant to which the Company or any of their respective employees the Company Subsidiaries receives from any third party a license or similar right to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner Intellectual Property that is material to the Company and its SubsidiariesCompany, taken as a wholeother than licenses with respect to software that is generally commercially available;
(vxix) any material that is a Contract entered into after June 30outside of the Ordinary Course of Business, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among which the Company or any of its SubsidiariesSubsidiaries is a party, or is otherwise bound, and the contracting counterparty of which is a Governmental Entity; or
(xx) that is a Contract (or form thereof and a list of the parties thereto) between the Company or any Company Subsidiary, on the one hand, and any of their respective Affiliates officer, director or affiliate (other than a wholly-owned Company Subsidiary) of the Company or any Company Subsidiary or any of its Subsidiariestheir respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract hand (other than Contracts granting any Contract that is a Company Options) giving the other party the right to terminate such Benefit Plan). Each Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract type described in clauses (i) through – (ixxx) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports this Section 3.21(a) is referred to herein as a “Company Material Contract”.
(b) As Neither the Company nor any Subsidiary of the Company is in material breach of or material default under the terms of any Company Material Contract. To the Knowledge of the Company, as of the date of this Agreement, except as would not have a no other party to any Company Material Adverse Effect, (i) each Contract is in material breach of or material default under the terms of any Company Material Contract. Each Company Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries the Subsidiary of the Company that is party thereto and, and to the Knowledge of the Company’s Knowledge, the of each other parties party thereto, (ii) neither and is in full force and effect, subject to the Enforceability Exceptions, except as would not or would not reasonably be expected to be material to the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractSubsidiary.
Appears in 2 contracts
Samples: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to otherwise disclosed in the Company SEC Reports filed prior Reports, to the date of this Agreement, as knowledge of the date hereofCompany, none Section 5.16 of the Company Disclosure Schedule contains a list of each contract to which the Company or a Company Subsidiary is a party that (i) purports to limit, curtail or restrict the right of the Company or its Subsidiaries is a party any Company Subsidiary (A) to engage or bound by:
(i) compete in any Contract that would be required to be filed by line of business in any geographic area or with any Person, or which requires exclusive referrals of business or requires the Company pursuant or any Company Subsidiary to Item 4 of the Instructions offer specified products or services to Exhibits of Form 20-F under the Exchange Act;
their customers on a priority or exclusive basis or (B) to compete with any person or operate in any location, (ii) is a standstill or similar agreement restricting the Company from acquiring the securities of, soliciting proxies respecting, or affecting the control, of any Contract involving Person, (iii) by its terms, purports to bind or otherwise limit, in any material respect, any Affiliate of the payment Company (other than any individual or receipt any Company Subsidiary) following the consummation of amounts the Transactions, (iv) pursuant to which material indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its SubsidiariesCompany Subsidiary, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiv)(A) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by requires the Company or any of its Subsidiaries with Company Subsidiary to indemnify any third party;
(iv) any Contract that limits other Person in any material respect the ability of or (B) obligates the Company or any Company Subsidiary to make any earn-out payments of its Subsidiaries or any a material amount based on future performance of their respective employees to compete in any material line of an acquired business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiariesassets, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between contains a “most favored nation” right or among the Company provision (or any similar right or provision) in favor of its Subsidiaries, on the one hand, and any of their respective Affiliates Person (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
) or (vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract except as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made described in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in preceding clauses (i) through (ixvi), is material to the Company’s business (such contracts and agreements, together with the “material contracts” (as such term is defined in Item 601(b)(10) above and each such Contract that would be a Material Contract but for of Regulation S-K promulgated under the exception of being Securities Act) filed as an exhibit to the Company SEC Reports is Reports, being collectively referred to herein as a the “Company Material ContractContracts”).
(b) Neither the Company nor any Company Subsidiary is and, to the knowledge of the Company, no other party is, in breach or violation of, or in default under, any Company Material Contract. As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation none of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the any Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event Subsidiary has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Company Material ContractContract and no event has occurred which would result in a material breach or violation of, or a material default under, any Company Material Contract (in each case, with or without notice or lapse of time or both). Each Company Material Contract is valid, binding and enforceable, in all material respects, in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles) and is in full force and effect, in all material respects, with respect to the Company or Company Subsidiaries, as applicable, and, to the knowledge of the Company, with respect to the other parties thereto.
Appears in 2 contracts
Samples: Merger Agreement (CBS Corp), Agreement and Plan of Merger (Cnet Networks Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 4.12(a) of the Company SEC Reports filed prior to the date REIT I Disclosure Letter sets forth a list of this Agreement, each Contract (other than a Benefit Plan) in effect as of the date hereof, none of the Company hereof to which REIT I or its Subsidiaries any REIT I Subsidiary is a party to or by which any of its properties or assets are bound bythat:
(i) any Contract that would be is required to be filed by the Company as an exhibit to REIT I's Annual Report on Form 10-K pursuant to Item 4 601(b)(2), (4), (9) or (10) of the Instructions to Exhibits of Form 20Regulation S-F K promulgated under the Exchange Securities Act;
(ii) any Contract involving the payment or receipt of amounts by the Company obligates REIT I or any of its Subsidiaries, or relating REIT I Subsidiary to material Indebtedness make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $200,000 and is not cancelable within ninety (90) days without material penalty to REIT I or any Indebtedness solely between the Company and any of its Subsidiaries)REIT I Subsidiary;
(iii) contains any material joint venture contractsnon-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of REIT I or any REIT I Subsidiary, strategic cooperationincluding upon consummation of the transactions contemplated by this Agreement, partnership arrangements or that otherwise restricts the lines of business conducted by REIT I or any REIT I Subsidiary or the geographic area in which REIT I or any REIT I Subsidiary may conduct business;
(iv) is a Contract that obligates REIT I or any REIT I Subsidiary to indemnify any past or present directors, officers, or employees of REIT I or any REIT I Subsidiary pursuant to which REIT I or any REIT I Subsidiary is the indemnitor; constitutes (A) an Indebtedness obligation of REIT I or any REIT I Subsidiary with a principal amount as of the date hereof greater than $200,000] or (B) a Contract (including any so called take-or-pay or keepwell agreements) under which (1) any Person including REIT I or a REIT I Subsidiary, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of REIT I or REIT I Subsidiary or (2) REIT I or a REIT I Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including REIT I or another REIT I Subsidiary (in each case other agreements outside than endorsements for the purpose of collection in the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company business);
(v) requires REIT I or any REIT I Subsidiary to dispose of its Subsidiaries or acquire assets or properties that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $200,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(vi) constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a swap or other hedging transaction of any type;
(vii) constitutes a loan to any Person (other than a Wholly Owned REIT I Subsidiary) by REIT I or any REIT I Subsidiary in an amount in excess of $200,000;
(viii) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of REIT I or any REIT I Subsidiary with a third party;
(ivix) any Contract that limits in any material respect prohibits the ability pledging of the Company capital stock of REIT I or any REIT I Subsidiary or prohibits the issuance of its Subsidiaries or guarantees by any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeREIT I Subsidiary;
(vx) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personis with a Governmental Authority;
(vixi) any Contract between has continuing "earn-out" or among the Company or any of its Subsidiariesother similar contingent purchase price payment obligations, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, in each case that involves could result in payments, taken as wholeindividually or in the aggregate, that is material to the Company and its Subsidiariesin excess of $200,000;
(viixii) any is an employment Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Actconsulting Contract;
(viiixiii) is a collective bargaining agreement or other Contract with any Contract labor organization, union or association;
(other than Contracts granting Company Optionsxiv) giving the other is a management agreement pursuant to which any third party the right to terminate such Contract as a result of this Agreement manages or the consummation operates any of the Merger where REIT I Properties on behalf of REIT I or any REIT I Subsidiary (the "REIT I Management Agreements");
(xv) is a ground lease under which REIT I or any REIT I Subsidiary holds a leasehold interest in the REIT I Properties or any portion thereof; or
(xvi) is both (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are business consistent with past practice and (B) material to REIT I and the Company and its REIT I Subsidiaries, taken as a whole, .
(b) Each Contract in any of the categories set forth in Section 4.12(a) to which REIT I or any REIT I Subsidiary is a party or by which it is bound as of the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports date hereof is referred to herein as a “"REIT I Material Contract”."
(bc) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Each REIT I Material Contract is a legal, valid valid, binding and binding obligation of the Company or its Subsidiaries enforceable on REIT I and each other REIT I Subsidiary that is a party thereto and, to the Company’s KnowledgeKnowledge of REIT I, the each other parties party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors' rights generally and by general principles of equity (ii) neither regardless of whether enforceability is considered in a proceeding in equity or at Law). REIT I and each REIT I Subsidiary has performed all obligations required to be performed by it prior to the Company date hereof under each REIT I Material Contract and, to the Knowledge of REIT I, each other party thereto has performed all obligations required to be performed by it under such REIT I Material Contract prior to the date hereof. Neither REIT I nor any of its Subsidiaries REIT I Subsidiary, nor, to the Company’s KnowledgeKnowledge of REIT I, any other party thereto thereto, is in breach or violation of, or default under, any REIT I Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orthat, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute a violation, breach or default under any REIT I Material Contract, except where in each case such breach, violation ofor default, individually or in the aggregate, would not reasonably be expected to have a REIT I Material Adverse Effect. Neither REIT I nor any REIT I Subsidiary has received notice of any violation or default under, or owes any termination, cancellation or other similar fees or any liquidated damages with respect to any REIT I Material Contract Contract, except for violations or defaults, or fees or damages, that, individually or in the aggregate, would not reasonably be expected to have a REIT I Material Adverse Effect. Since December 31, 2016 and (iii) to as of the Company’s Knowledgedate hereof, the Company and its Subsidiaries have not neither REIT I nor any REIT I Subsidiary has received any written claim or notice of defaultthe intention of any party to cancel, termination terminate, materially change the scope of rights under or cancellation under fail to renew any such REIT I Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (MVP REIT II, Inc.), Merger Agreement (MVP REIT, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 3.17(a) of the Company SEC Reports filed prior to Disclosure Schedule sets forth a list (in effect as of the date of this Agreement, as ) of all of the date hereof, none Contracts of the Company or its Subsidiaries is a party which are material to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 business and/or assets of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its SubsidiariesSubsidiaries (the “Material Contracts”), including each of the following Contracts (and each amendment or relating modification thereto), excluding purchase orders and sales orders made in the ordinary course of business consistent with past practices:
(i) Benefit Plan listed or required to material Indebtedness (other than any Indebtedness solely between be listed on Section 3.13(b) of the Company and any Disclosure Schedule;
(ii) employment, consulting, severance, retention, termination, parachute or change-of-control Contract, arrangement or understanding listed or required to be listed on Section 3.13(a) of its Subsidiaries)the Company Disclosure Schedule;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements collective bargaining agreement or other agreements outside the ordinary course Contract of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third partylabor union;
(iv) Contract under which the Company or any of its Subsidiaries has advanced or loaned or agreed to advance or loan to any other Person amounts exceeding $10,000 in the aggregate;
(v) Contract that limits in any material respect the ability of the Company or any of its Subsidiaries relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any of their respective employees to compete in any material line of business asset or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) group of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vi) Contract by which the Company or any of its Subsidiaries guarantees, endorses or otherwise becomes or is contingently liable upon the Liability of any other Person (other than by endorsements of instruments in the ordinary course of collection), or guaranties of the payment of dividends or other distributions upon the shares of any other Person;
(vii) any Contract between the Company or any of its Subsidiaries and with any director Significant Customer;
(viii) Contract under which the Company or executive officer one of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other Person, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $50,000;
(ix) Contract under which the Company or one of its Subsidiaries is lessor of or permits any other Person to hold or operate any property, real or personal, owned or controlled by the Company or one of its Subsidiaries other than immaterial rights of way, easements, covenants or similar rights to real property;
(x) Contract of the Company or any Person beneficially owning five percent of its Subsidiaries that is a settlement, conciliation or more similar agreement requiring payment as of or after the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 execution date of Form 20-F under the Exchange Actthis Agreement of consideration in excess of $25,000;
(viiixi) any material Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where Company or any of its Subsidiaries relating to any intangible property (Aincluding any Intellectual Property) such Contract requires or any payment, taken as whole, that is material other agreements affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any Intellectual Property;
(xii) warranty agreement of the Company or any of its Subsidiaries relating to the services rendered by it;
(xiii) Contract of the Company and or any of its Subsidiaries with a term of more than twelve (12) months which is not terminable by the Company or one of its Subsidiaries upon less than thirty (B30) days’ notice without material penalty and involves a consideration in excess of $50,000 per Contract annually;
(xiv) Contract prohibiting the value Company or any of its Subsidiaries from freely engaging in business in any jurisdiction in the world in any material respect;
(xv) Contract of the outstanding receivables due Company or any of its Subsidiaries with respect to capital expenditures in excess of $25,000;
(xvi) Medicare or Medicaid Contract to which the Company and or any of its Subsidiaries under such Contractis a party, taken as whole, that is material or to which any of their respective assets or properties are subject;
(xvii) Contract of the Company and or any of its SubsidiariesSubsidiaries with any Governmental Authority; and
(ixxviii) any other contracts and agreementspower of attorney, whether proxy or not made in the ordinary course similar Contract of business, which are material to the Company and or any of its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As The Company has provided to Parent true and complete copies of each written Contract set forth in Section 3.17(a) of the date Company Disclosure Schedule and a written summary of this Agreement, except the material terms of each oral Contract set forth in Section 3.17(a) of the Company Disclosure Schedule. Except as would not have a disclosed in Section 3.17(b) of the Company Material Adverse EffectDisclosure Schedule, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries noris, nor to the Company’s Knowledgeknowledge, is any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or in material default under, under any Material Contract and (iiiii) there has not occurred any event that, with the lapse of time or giving of notice or both, would constitute a material default. All Material Contracts to which the Company or any of its Subsidiaries is a party, or by which any of their respective material assets are bound, are valid and binding, in full force and effect and enforceable against the Company or any such Subsidiary, as the case may be, and to the Company’s Knowledgeknowledge, the other parties thereto in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally and to the general principles of equity.
(c) Except as disclosed in Section 3.17(c) of the Company and Disclosure Schedule, neither the Company nor any of its Subsidiaries have not received has any written claim Liabilities relating to the purchase or notice sale of defaultany business, termination entity or cancellation assets, including under any such Material Contractescrow, indemnity or security agreement (or similar agreement).
(d) Each of the Voting Agreement and the Contribution Agreement is in full force and effect and enforceable against the parties thereto as of the date hereof and shall be in full force and effect and enforceable against the parties thereto at the Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (National Home Health Care Corp), Agreement and Plan of Merger (National Home Health Care Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except none of Parent, any of its subsidiaries or their respective properties or other assets is a party to or bound by any Contract (other than Parent Plans):
(i) pursuant to which the Parent, any of its subsidiaries or any other party thereto has material continuing obligations, rights or interests and including annual payments by the Parent and its subsidiaries of $100,000 or more relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, any product candidate for which the Parent or any of its subsidiaries is currently engaged in research or development, including but not limited to: (A) material manufacture or supply services or material Contracts with contract research organizations for clinical trials-related services; (B) material transfer Contracts for pre-clinical products or clinical products of the Company or any of its subsidiaries with commercial, pharmaceutical or biotechnology companies; (C) Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Parent or any of its subsidiaries or income or revenues related to any clinical product candidate of the Parent or any of its subsidiaries; and (D) Contracts pursuant to which the Parent has minimum purchase or “most favored nation” obligations;
(ii) that contains any non-compete or exclusivity provision or limits or purports to limit, curtail or restrict the ability of the Parent or any of its subsidiaries (or which following the consummation of the Merger and the other transactions contemplated hereby would reasonably be expected to limit the ability of the Surviving Corporation) in a manner that is material to the business of the Parent and its subsidiaries, taken as a whole, as currently conducted (A) to compete in any line of business, in any geographic area or with any Person and (B) to sell to or purchase from any other Person;
(iii) that requires or permits Parent, or any successor to, or acquirer of, the Parent, to make any payment to another Person, or requires the consent of another Person, in each case in connection with a change of control of Parent or gives another Person a right to receive or elect to receive a change of control payment;
(iv) that is a joint-venture or partnership agreement or other similar agreement or arrangement;
(v) that (A) relates to the disposition or acquisition by Parent or its subsidiaries of a material amount of assets or equity interests in any Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $50,000 or (B) pursuant to which Parent or its subsidiaries will acquire or dispose of any material ownership interest in any other person or other business enterprise other than the Parent’s subsidiaries;
(vi) that is a loan or credit agreement, indenture, note or other Contract or instrument relating to or evidencing Indebtedness for borrowed money (including any guarantee thereto) or any Contract pursuant to which Indebtedness for borrowed money may be incurred or guaranteed, including any Contract that is a financial derivatives master agreement or confirmation, or futures account opening agreement and/or brokerage statement, evidencing financial hedging or similar trading activities;
(vii) that is a mortgage, pledge, security agreement, deed of trust, capital lease or similar agreement that creates or grants a Lien on any material property or asset of the Parent or any of its subsidiaries, in each case involving annual payments of more than $100,000;
(viii) that is a Collective Bargaining Agreement;
(ix) that is a Contract providing for the issuance or sale of any equity securities of the Company or any of its subsidiaries;
(x) That is a settlement agreement, or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Authority or any other Person that has existing or contingent performance obligations;
(xi) that is a Contract granting a right of first refusal or first negotiation to any third party over any material assets of the Parent;
(xii) that is a Contract, including any ancillary or subagreements thereto, with any contract research organization or other agreement, including any ancillary or subagreements thereto, with a third party which is conducting one or more clinical studies on behalf of the Parent or its subsidiaries and is reasonably expected to require payment of more than $50,000 within twelve (12) months prior to or after the date of this Agreement;
(xiii) involves the use or license by the Parent or its subsidiaries of any material Software used by the Parent or its subsidiaries as presently conducted (other than non-customized Software subject to shrink-wrap, click-wrap and off-the-shelf or commercially available Software);
(xiv) is a Parent IP Agreement of the type set forth in Section 4.15(f) or Section 4.15(g) of the Parent Disclosure Letter or involves the joint development of products or technology with a third party that is material to Parent and its subsidiaries, taken as a whole; or
(xv) that is any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(xvi) All Contracts, arrangements, commitments or understandings described in this Section 4.12(a), together with each Parent Real Property Lease, shall be collectively referred to as the “Parent Material Contracts.”
(b) Except, in each case, as has not been and would not have reasonably be expected to be, individually or in the aggregate, material to Parent and its subsidiaries, taken as a Company Material Adverse Effectwhole, as of the date hereof, (i) each Material Contract is a legal, valid and binding obligation of the Company or Parent Material Contracts is valid, binding and in full force and effect with respect to Parent and its Subsidiaries subsidiaries party thereto and, to the Company’s KnowledgeKnowledge of Parent, the each other parties party thereto and enforceable, in all material respects, in accordance with its terms by Parent and its subsidiaries party thereto, ; (ii) neither the Company nor any Parent and each of its Subsidiaries nor, subsidiaries has performed all material obligations required to be performed by them under the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Parent Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, Contracts to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and which they are parties; (iii) to the Company’s KnowledgeKnowledge of Parent, each other party to a Parent Material Contract has performed all material obligations required to be performed by it under such Parent Material Contract and (iv) no party to any Parent Material Contract has given Parent or any of its subsidiaries written notice of its intention to cancel, terminate, change the Company scope of rights under or fail to renew any Parent Material Contract and neither Parent nor any of its subsidiaries, nor, to the Knowledge of Parent, any other party to any Parent Material Contract, has repudiated in writing any material provision thereof. Neither Parent nor any of its subsidiaries has knowledge of, or has received written notice of, any violation or default under any Parent Material Contract or any other Contract to which it is a party or by which it or any of its material properties or assets is bound, except for violations or defaults that have not been and would not reasonably be expected to be, individually or in the aggregate, material to Parent and its Subsidiaries subsidiaries, taken as a whole. True, unredacted and complete copies of all of the Parent Material Contracts have not received any written claim or notice of default, termination or cancellation under any such Material Contractbeen made available to the Company.
Appears in 2 contracts
Samples: Merger Agreement (Peak Bio, Inc.), Merger Agreement (Akari Therapeutics PLC)
Material Contracts. (a) Except for this Agreement and except for the Contracts filed as exhibits to disclosed in the Filed Company SEC Documents, Section 4.14(a) of the Company SEC Reports filed prior to Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, as of the date hereof, none of and the Company or its Subsidiaries is a party has made available to or bound byParent true and complete copies, of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Securities Act;
(ii) any each Contract involving the payment or receipt of amounts by to which the Company or any of its Subsidiaries, or relating to material Indebtedness Company Subsidiary is a party that (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiA) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect restricts the ability of the Company or any of its Subsidiaries or any of their respective employees Company Subsidiary to compete in any material line of business or with any Person or entity or in any geographic area geographical area, (B) requires the Company or during any period Company Subsidiary to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of time any third party, except in a manner the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that is are not material to the Company and its the Company Subsidiaries, taken as a whole;
(viii) each Contract under which the Company or any material Contract entered into after June 30, 2011 Company Subsidiary licenses Intellectual Property from or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets to any third party (other than assets purchased (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of business), except for such licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iv) any Contract pursuant to capital expenditures) which the Company or share capital any Company Subsidiary will acquire any material ownership interest in any other Person or other equity interests business enterprise other than any Company Subsidiary, in each case, with a value greater than $1,000,000 after the date of another Personthis Agreement;
(v) each Contract that constitutes a commitment relating to indebtedness for borrowed money or the deferred purchase price of property by the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000, other than agreements solely between or among the Company and any Company Subsidiaries;
(vi) any each Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiariesfor a Derivative Transaction;
(vii) any each Contract between to which the Company or any Company Subsidiary is a party that provides for annual payments, receipts or expenditures in excess of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act$1,000,000;
(viii) any Contract (other than Contracts granting that is a settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which the Company Options) giving or any Company Subsidiary will have any material obligations after the other party the right to terminate such Contract as a result date of this Agreement Agreement;
(ix) each collective bargaining agreement or the consummation other Contract with any labor union, works council, or other labor organization respecting employees of the Merger where Company or any Company Subsidiary;
(Ax) such each Contract requires with or binding upon the Company or any payment, taken as whole, Company Subsidiary or any of their respective properties or assets that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due type that would be required to be disclosed under Item 404 of Regulation S-K under the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its SubsidiariesSecurities Act; and
(ixxi) any other contracts and agreements, whether or not made in the ordinary course of business, Contract to which are material to the Company or any Company Subsidiary is a party that is for the employment or engagement of any person on a full-time or part-time basis, including directors, employees and its Subsidiaries, taken as a whole, or the conduct independent contractors and employees at annual compensation in excess of their respective businesses, or the absence of which would have a Company Material Adverse Effect$1,000,000. Each such Contract described in clauses (i) through (ixxi) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Company Specified Contract.”.
(b) As of the date of this Agreement, each of the Company Specified Contracts is valid, binding and enforceable on the Company or a Company Subsidiary, as the case may be, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect except (i) for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect and (ii) insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity. As of the date of this Agreement, to the Knowledge of the Company, there is no default under any Company Specified Contract by the Company or any Company Subsidiary or any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any Company Subsidiary or any other party thereto, in each case except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Amplify Energy Corp), Merger Agreement (Midstates Petroleum Company, Inc.)
Material Contracts. (ai) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date For purposes of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by“Fxxxxx Material Contract” shall mean:
(iA) Any employment, severance, consulting or other Contract with an employee or former employee, officer or director of Fxxxxx or any Subsidiary of Fxxxxx (other than any unwritten Contract that would be required to be filed for the employment of any such employee or former employee implied at law) which will require the payment of amounts by Fxxxxx or any Subsidiary of Fxxxxx, as applicable, after the Company pursuant to Item 4 date hereof in excess of the Instructions to Exhibits of Form 20-F under the Exchange Act$250,000 per annum;
(iiB) Any collective bargaining Contract with any labor union;
(C) Any Contract involving for capital expenditures or the payment acquisition or receipt construction of amounts by fixed assets which requires aggregate future payments in excess of $2,500,000;
(D) Any Contract containing covenants of Fxxxxx or any Subsidiary of Fxxxxx (1) to indemnify or hold harmless another Person or group of Persons, unless such indemnification or hold harmless obligation to such Person, or group of Persons, as the Company case may be, would not reasonably be expected to exceed a maximum of $1,000,000 (except for product warranty obligations in Contracts for the sale of goods in the ordinary course of business) or (2) not to (or otherwise restrict or limit the ability of Fxxxxx or any of its Subsidiaries, Subsidiaries to) compete in any line of business or geographic area;
(E) Any Contract requiring aggregate future payments or expenditures in excess of $2,500,000 and relating to material Indebtedness cleanup, abatement, remediation or similar actions in connection with environmental liabilities;
(F) Any license, royalty Contract or other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires payments by Fxxxxx or any Subsidiary of Fxxxxx in excess of $1,000,000 per annum;
(G) Any Contract pursuant to which Fxxxxx or any Subsidiary of Fxxxxx has entered into a partnership or joint venture with any other Person (other than Fxxxxx or any Indebtedness solely between the Company and any Subsidiary of its SubsidiariesFxxxxx);
(iiiH) Any indenture, mortgage, loan, guarantee or credit Contract under which Fxxxxx or any material joint venture contractsSubsidiary of Fxxxxx has outstanding indebtedness or any outstanding note, strategic cooperationbond, partnership arrangements indenture or other agreements outside evidence of indebtedness for borrowed money or otherwise or any guaranteed indebtedness for money borrowed by others, in each case, for or guaranteeing an amount in excess of $2,500,000;
(I) Any Contract under which Fxxxxx or any Subsidiary of Fxxxxx is (1) a lessee of real property, (2) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, (3) a lessor of real property, or (4) a lessor of any tangible personal property owned by Fxxxxx or any Subsidiary of Fxxxxx, in each case which requires annual payments in excess of $1,000,000;
(J) Any Contract (other than purchase or sale orders in the ordinary course of business involving a sharing of profits, losses, costs that are terminable or liabilities by the Company cancelable without penalty on 90 days’ notice or less) under which Fxxxxx or any Subsidiary of its Subsidiaries with Fxxxxx is a purchaser or supplier of goods and services which, pursuant to the terms thereof, requires payments by Fxxxxx or any third partySubsidiary of Fxxxxx in excess of $1,000,000 per annum;
(ivK) Any material Contract (including guarantees) between Fxxxxx or any wholly-owned Subsidiary of Fxxxxx and another Subsidiary of Fxxxxx that is not wholly-owned by Fxxxxx;
(L) Any Contract that limits which requires payments by Fxxxxx or any Subsidiary of Fxxxxx in excess of $1,000,000 per annum containing “change of control” or similar provisions;
(M) Any Contract entered into on or after January 1, 2001 relating to the acquisition or disposition of any material respect business or any assets (whether by merger, sale of stock or assets or otherwise), in an amount in excess of $5,000,000 (all of which Contracts have been made available to Apogent prior to the ability date hereof in the data room maintained by Fxxxxx’x counsel in connection with the transactions contemplated hereby);
(N) Any Contract (other than Contracts of the Company type described in subclauses (A) through (M) above) that involves aggregate payments by or to Fxxxxx or any Subsidiary of its Subsidiaries Fxxxxx in excess of $1,000,000 per annum, other than purchase or any of their respective employees to compete sales orders or other Contracts entered into in any material line the ordinary course of business consistent with past practice that are terminable or with any Person cancelable without penalty on 90 days’ notice or entity less; and
(O) Any Contract the termination or breach of which, or the failure to obtain consent in any geographic area or during any period of time in respect of, would reasonably be expected to have a manner that is material to the Company Material Adverse Effect on Fxxxxx and its Subsidiaries, taken as a whole;.
(vii) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamationSchedule. Section 3.2(q)(ii) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests the Fxxxxx Disclosure Schedule sets forth a list of another Person;
(vi) any Contract between or among all Fxxxxx Material Contracts as of the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material date hereof. With respect to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through Section 3.2(q)(i)(D), (ixF), (I), (J), (L) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(bN) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (iSection 3.2(q)(ii) each Material Contract is a legal, valid and binding obligation of the Company Fxxxxx Disclosure Schedule sets forth only Contracts which require payments, or its Subsidiaries party thereto andin the case of clause (D) involve obligations, to the Company’s Knowledge, the other parties thereto, in excess of $2,500,000 and (ii) neither Section 3.2(q)(i)(N) of this Agreement, Section 3.2(q)(ii) of the Company nor any of its Subsidiaries nor, Fxxxxx Disclosure Schedule sets forth only Contracts involving payments to the Company’s Knowledge, any other party thereto is in breach or violation ofFxxxxx, or default underany Subsidiary of Fxxxxx, any Material Contract and no event has occurred or not occurred through the Company’s or any in excess of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract$10,000,000.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Apogent Technologies Inc), Agreement and Plan of Merger (Fisher Scientific International Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to As of the date of this Agreement, as of the date hereof, none of the Company Company, any of its subsidiaries or its Subsidiaries their respective properties or other assets is a party to or bound by:by any Contract (other than Company Plans):
(i) pursuant to which the Company, any Contract that would be required to be filed of its subsidiaries or any other party thereto has material continuing obligations, rights or interests and including annual payments by the Company pursuant and its subsidiaries of $100,000 or more relating to Item 4 of the Instructions to Exhibits of Form 20research, development, clinical trial, distribution, supply, manufacture, marketing or co-F under the Exchange Act;
(ii) promotion of, or collaboration with respect to, any Contract involving the payment or receipt of amounts by product candidate for which the Company or any of its Subsidiariessubsidiaries is currently engaged in research or development, including but not limited to: (A) material manufacture or relating to supply services or material Indebtedness Contracts with contract research organizations for clinical trials-related services; (other than any Indebtedness solely between the Company and any B) material transfer Contracts for pre-clinical products or clinical products of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries subsidiaries with commercial, pharmaceutical or biotechnology companies; (C) Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any third partyof its subsidiaries or income or revenues related to any clinical product candidate of the Company or any of its subsidiaries; and (D) Contracts pursuant to which the Company has minimum purchase or “most favored nation” obligations;
(ivii) that contains any Contract that non-compete or exclusivity provision or limits in any material respect or purports to limit, curtail or restrict the ability of the Company or any of its Subsidiaries subsidiaries (or any which following the consummation of their respective employees the Merger and the other transactions contemplated hereby would reasonably be expected to compete in any material line limit the ability of business or with any Person or entity or in any geographic area or during any period of time the Surviving Corporation) in a manner that is material to the business of the Company and its Subsidiariessubsidiaries, taken as a whole, as currently conducted (A) to compete in any line of business, in any geographic area or with any Person and (B) to sell to or purchase from any other Person;
(iii) that requires or permits the Company, or any successor to, or acquirer of, the Company, to make any payment to another Person, or requires the consent of another Person, in each case in connection with a change of control of the Company or gives another Person a right to receive or elect to receive a change of control payment;
(iv) that is a joint-venture or partnership agreement or other similar agreement or arrangement;
(v) that (A) relates to the disposition or acquisition by the Company or its subsidiaries of a material amount of assets or equity interests in any Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $50,000 or (B) pursuant to which the Company or its subsidiaries will acquire or dispose of any material Contract entered into after June 30, 2011 ownership interest in any other person or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other business enterprise other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personthe Company’s subsidiaries;
(vi) that is a loan or credit agreement, indenture, note or other Contract or instrument relating to or evidencing Indebtedness for borrowed money (including any guarantee thereto) or any Contract between pursuant to which Indebtedness for borrowed money may be incurred or among guaranteed, including any Contract that is a financial derivatives master agreement or confirmation, or futures account opening agreement and/or brokerage statement, evidencing financial hedging or similar trading activities;
(vii) that is a mortgage, pledge, security agreement, deed of trust, capital lease or similar agreement that creates or grants a Lien on any material property or asset of the Company or any of its Subsidiariessubsidiaries, on in each case involving annual payments of more than $100,000;
(viii) that is a Collective Bargaining Agreement;
(ix) that is a Contract providing for the one hand, and issuance or sale of any equity securities of their respective Affiliates (other than the Company or any of its Subsidiariessubsidiaries;
(x) That is a settlement agreement, or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Authority or any other Person that has existing or contingent performance obligations;
(xi) that is a Contract granting a right of first refusal or first negotiation to any third party over any material assets of the Company;
(xii) that is a Contract, including any ancillary or subagreements thereto, with any contract research organization or other agreement, including any ancillary or subagreements thereto, with a third party which is conducting one or more clinical studies on behalf of the Company or its subsidiaries and is reasonably expected to require payment of more than $50,000 within twelve (12) months prior to or after the date of this Agreement;
(xiii) involves the use or license by the Company or its subsidiaries of any material Software used by the Company or its subsidiaries as presently conducted (other than non-customized Software subject to shrink-wrap, click-wrap and off-the-shelf or commercially available Software), on ;
(xiv) is an IP Agreement of the other hand, that type set forth in Section 3.15(f) or 3.15(g) of the Company Disclosure Letter or involves payments, taken as whole, the joint development of products or technology with a third party that is material to the Company and its Subsidiaries;subsidiaries, taken as a whole; or
(viixv) that is any Contract between that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(xvi) All Contracts, arrangements, commitments or understandings described in this Section 3.12(a), together with each Company Real Property Lease, shall be collectively referred to as the “Company Material Contracts.”
(b) Except, in each case, as has not been and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its subsidiaries, taken as a whole, as of the date hereof, (i) each of the Company Material Contracts is valid, binding and in full force and effect with respect to the Company and its subsidiaries party thereto and, to the Knowledge of the Company, each other party thereto and enforceable, in all material respects, in accordance with its terms by the Company and its subsidiaries party thereto (subject to the Bankruptcy and Equity Exception); (ii) the Company and each of its subsidiaries has performed all material obligations required to be performed by them under the Company Material Contracts to which they are parties; (iii) to the Knowledge of the Company, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract and (iv) no party to any Company Material Contract has given the Company or any of its Subsidiaries and subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries subsidiaries, nor, to the Knowledge of the Company’s Knowledge, any other party thereto is to any Company Material Contract, has repudiated in breach or violation writing any material provision thereof. Neither the Company nor any of its subsidiaries has knowledge of, or default underhas received written notice of, any violation or default under any Company Material Contract and no event has occurred or not occurred through the Company’s any other Contract to which it is a party or by which it or any of its Subsidiaries’ action material properties or inaction orassets is bound, except for violations or defaults that have not been and would not reasonably be expected to be, individually or in the Company’s Knowledgeaggregate, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) material to the Company’s Knowledge, the Company and its Subsidiaries subsidiaries, taken as a whole. True, unredacted and complete copies of all of the Company Material Contracts have not received any written claim or notice of default, termination or cancellation under any such Material Contractbeen made available to Parent.
Appears in 2 contracts
Samples: Merger Agreement (Peak Bio, Inc.), Merger Agreement (Akari Therapeutics PLC)
Material Contracts. (a) Except for Section 4.19(a) of the Company Disclosure Schedule sets forth a list as of the date of this Agreement and except for of each of the following Contracts filed as exhibits to which the Company SEC Reports filed prior or any of its Subsidiaries is a party or by which it is bound (each such Contract listed or required to be so listed, and each of the following Contracts to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date of this Agreement, as of the date hereof, none of the a “Company or its Subsidiaries is a party to or bound by:Material Contract”):
(i) any Contract pursuant to which the Company or any of its Subsidiaries incurred payment obligations or received payments in excess of $10,000,000 during the twelve (12) month period ended September 30, 2019, or is expected to incur payment obligations or receive payments in excess of (A) $10,000,000 during any twelve (12) month period ending after September 30, 2019 or (B) $10,000,000 over the remaining term of the Contract;
(ii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time, (B) contains any material exclusivity or “most favored nation” obligations or restrictions or similar provisions that are binding on the Company or any of its Subsidiaries (or, after the Effective Time, that would be binding on Parent or any of its Affiliates) or (C) otherwise limits or restricts, in any material respect, the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Affiliates) from hiring or soliciting any Person for employment;
(iii) any deposit sweep agreement or similar agreement;
(iv) (A) any standard form Contract pursuant to which the Company or any of its Subsidiaries provides Brokerage Services or Investment Advisory Services to any Client and (B) any material Contract (or group of Contracts that, in the aggregate, are material) pursuant to which the Company or any of its Subsidiaries provides Brokerage Services or Investment Advisory Services to any Client that is not on any such standard form and includes material deviations from any such standard form;
(v) any material subadvisory agreement;
(vi) any material custody or sub-custody agreement, transfer agent agreement, administrative and accounting agreement, shareholders services agreements, distribution agreement, prime brokerage or other brokerage related agreement, or similar agreement;
(vii) any material Contract that provides for any referral arrangement, commission-sharing arrangement or co-marketing arrangement, including, any finder’s agreement for soliciting, distributing or promoting Investment Advisory Services or Brokerage Services by or to the Company or any of its Subsidiaries;
(viii) any Contract reasonably expected to result in payments made or received by the Company and its Subsidiaries in excess of $10,000,000 in any year and for which the execution, delivery and performance by the Company of this Agreement or the consummation of any of the Transactions would require any consent or other action by any Person (including notice by the Company) thereunder, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, thereunder, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation (including triggering of a price adjustment, right of renegotiation or other remedy) or the loss of any benefit to which the Company or any of its Subsidiaries is entitled thereunder;
(ix) promissory notes, loan agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, (A) if as borrower or guarantor, in aggregate principal amount in excess of $15,000,000, and (B) if as lender, in aggregate principal amount in excess of $5,000,000;
(x) any Contract restricting the payment of dividends or the making of distributions to stockholders of the Company or the repurchase of stock or other equity of the Company;
(xi) any Collective Bargaining Agreements;
(xii) any material joint venture, profit-sharing, partnership or other similar agreements;
(xiii) any Contracts or series of related Contracts entered into within the last three (3) years or containing any material surviving obligations relating to the acquisition or disposition of the assets or securities of any Person or any business for a price in excess of $10,000,000 (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(xiv) any lease or sublease for real or personal property for which annual rental payments made by the Company and its Subsidiaries during the twelve (12) month period ended September 30, 2019 or expected to be made by the Company and its Subsidiaries during any twelve (12) month period ending after September 30, 2019 are greater than $5,000,000;
(xv) all material Contracts pursuant to which the Company or any of its Subsidiaries (A) receives or is granted any license or sublicense to, or covenant not to be sued under, any Intellectual Property (other than licenses to Software that is commercially available on non-discriminatory pricing terms) or (B) grants any license or sublicense to, or covenant not to be sued under, any Intellectual Property (other than immaterial, non-exclusive licenses granted in the ordinary course of business);
(xvi) any Contracts or other transactions with any (A) executive officer or director of the Company, (B) record or, to the knowledge of the Company, beneficial owner of five percent (5%) or more of the voting securities of the Company (including TD Bank), or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Securities Exchange Act) of any such executive officer, director or beneficial owner (each of the foregoing, a “Related Party” and each such Contract, a “Related Party Contract”);
(xvii) any other Contract required to be filed by the Company pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F under the Exchange Act;K; and
(iixviii) any other Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;.
(vb) any material Contract entered into All of the Company Material Contracts are, subject to the Bankruptcy and Equity Exceptions, valid and binding obligations of the Company or a Subsidiary of the Company (as the case may be) and, to the knowledge of the Company, each of the other parties thereto, and in full force and effect and enforceable in accordance with their respective terms against the Company or its Subsidiaries (as the case may be) and, to the knowledge of the Company, each of the other parties thereto (except for such Company Material Contracts that are terminated after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) date of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests this Agreement in accordance with their respective terms; provided that if such termination is at the option of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to such termination must be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business), which are material except where the failure to be valid and binding obligations and in full force and effect and enforceable has not had and would not reasonably be expected to have, individually or in the Company and its Subsidiariesaggregate, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for To the exception knowledge of being filed as an exhibit the Company, no Person is seeking to terminate or challenging the validity or enforceability of any Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as such terminations or challenges which have not had and would not have reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries, (i) each Material Contract is a legal, valid and binding obligation nor to the knowledge of the Company or its Subsidiaries party thereto andCompany, to the Company’s Knowledge, any of the other parties theretothereto has violated any provision of, or committed or failed to perform any act which (iiwith or without notice, lapse of time or both) would constitute a default under any provision of, and neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach has received written notice that it has violated or violation of, or default defaulted under, any Company Material Contract Contract, except for those violations and no event has occurred defaults (or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iiipotential defaults) to the Company’s Knowledge, the Company and its Subsidiaries which have not received any written claim had and would not reasonably be expected to have, individually or notice of defaultin the aggregate, termination or cancellation under any such a Company Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Schwab Charles Corp), Merger Agreement (Td Ameritrade Holding Corp)
Material Contracts. (ai) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereofof this Agreement, none of the Company or its Subsidiaries is a party to or bound by:by any Company Contracts (each such Company Contract, a “Material Contract”):
(iA) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(iiI) any Contract involving the payment or receipt of amounts by containing covenants binding upon the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect restrict the ability of the Company or any of its Subsidiaries (or any which, following the consummation of their respective employees the Merger or the Bank Merger, would materially restrict the ability of Parent, the Surviving Corporation or its Affiliates) to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material which grant “most favored nation” status that, following the Merger or the Bank Merger, would apply to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company Parent or any of its Subsidiaries, on ; (II) that could require the one hand, and disposition of any material assets or line of their respective Affiliates (other than business of the Company or its Subsidiaries or, after the Effective Time, Parent or any of its Subsidiaries), on ; or (III) that prohibits or limits the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between right of the Company or any of its Subsidiaries and to sell or distribute any director products or executive officer services;
(B) involving commitments to others to make capital expenditures or capital asset purchases or capital asset sales;
(C) relating to any direct or indirect indebtedness for borrowed money of the Company or any of its Subsidiaries (including loan agreements, lease purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which others rely in extending credit), or any conditional sales Company Contracts, chattel mortgages and other security arrangements with respect to personal property, other than Company Contracts entered into in the ordinary course of business consistent with past practice, and any equipment lease agreements involving payments to or by the Company or any of its Subsidiaries in excess of $75,000 over the remaining term;
(D) provides for payments to be made by the Company or any of its Subsidiaries upon a change in control thereof;
(E) containing any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person;
(F) that would prevent, materially delay or materially impede the Company’s ability to consummate the Merger, the Bank Merger or the other transactions contemplated hereby;
(G) providing for indemnification by the Company or any of its Subsidiaries of any Person, except for non-material Company Contracts entered into in the ordinary course of business;
(H) that was not negotiated and entered into on an arm’s-length basis;
(I) other than this Agreement, that is entered into, or has been entered into in the two years prior to the date hereof, with (i) any Affiliate of the Company, (ii) any current or former director or officer or any Person beneficially owning five percent (5%) or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 (iii) any “associate” or member of Form 20-F under the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of a person identified in clauses (i) or (ii) of this subsection;
(viiiJ) that contains a put, call or similar right pursuant to which the Company or any Contract of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets;
(K) which relates to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement, or to the formation, creation or operation, management or control of any partnership or joint venture with any third parties;
(L) involves performance of services or delivery of goods or materials to, or expenditures by, the Company or any of its Subsidiaries of an amount or value in excess of $100,000 over its remaining term, other than loans, funding arrangements, OREO-related arrangements and other transactions made in the ordinary course of the banking business;
(M) relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) entered into since December 31, 2010 (other than Company Contracts granting Company Optionsrelating to the acquisition or sale of other real estate owned);
(N) giving otherwise not entered into in the other party the right to terminate such Contract as a result ordinary course of this Agreement business or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and or its Subsidiaries financial condition or results of operations.
(Bii) the value Each of the outstanding receivables due to Material Contracts is valid and binding on the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a wholethe case may be and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the conduct of their respective businessesaggregate, or the absence of which would have result in a Company Material Adverse Effect. Each There is no default under any such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of Contracts by the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or the lapse of time or the giving of notice or both would constitute a breach default thereunder by the Company or violation ofits Subsidiaries, in each case except as would not, or default underwould not reasonably be expected to, any individually or in the aggregate, result in a Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hanmi Financial Corp), Merger Agreement (Hanmi Financial Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date For purposes of this Agreement, as of the date hereofa “Material Contract” shall mean any Contract, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contractsRelated Agreements, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by which the Company or any of its Subsidiaries with any third party;
is a party or is bound as of the date hereof which (ivi) any Contract that limits is required to be disclosed in any material respect the Company SEC Reports pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC, (ii) restricts the ability of the Company or any of its Subsidiaries to pay dividends or make distributions, (iii) (A) restricts in any material respect the Company’s or any of their respective employees its Subsidiaries’ ability to compete engage in any material line of business or compete with any Person or entity or other entities in any geographic area in favor of any Person other than the Company or during any period of time its Subsidiaries, (B) contains any covenant granting “most favored nation” or similar status to any Person that, following consummation of the Merger, would restrict actions in any material respect taken by Parent, the Surviving Entity or their respective Subsidiaries or Affiliates or (C) following the consummation of the Merger, would obligate Parent, the Surviving Entity or their respective Subsidiaries or Affiliates to conduct business on an exclusive or preferential basis with any Person, (iv) obligates the Company or any of its Subsidiaries to make non-contingent, aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $200,000 (but specifically excluding any leases of real property), which Contract is not cancelable within ninety (90) days without material penalty to the Company or any of its Subsidiaries, (v) contains (A) an option, right of first offer, right of first refusal or otherwise requires the Company or its Subsidiaries to dispose of or acquire any individual asset (or assets) with a manner value in excess of $100,000 or (B) any takedown or profit participation agreements (vi) requires material commission payments or royalty payments (including with respect to mineral and water rights) other than brokerage fees in the ordinary course of business consistent with past practice, (vii) contains put, call or similar rights pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell equity interests of any Person or assets that have a fair market value or purchase price in excess of $200,000, (viii) contains a license or other right granted by or to the Company or any of its Subsidiaries with respect to any Intellectual Property that is material to the conduct of their business (excluding license of commercially available, non-customized software granted to the Company or any of its Subsidiaries and its Subsidiariesused for internal purposes only), taken as (ix) constitutes a whole;
(v) any material Contract entered into after June 30joint venture, 2011 or not yet consummatedpartnership, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital limited liability company agreement or other equity interests of another Person;
(vi) any similar Contract between or among the Company or any of its Subsidiaries, on the one hand, and any third party, on the other hand, (x) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond or any other Contract related to Indebtedness for borrowed money of their respective Affiliates (other than the Company or any of its Subsidiaries), on the in each case having an outstanding principal amount in excess of $250,000, individually, other hand, that involves payments, taken as whole, that is material to than any such Contract between or among the Company and any of its Subsidiaries;
, (viixi) constitutes a loan to any Person by the Company or its Subsidiaries (other than to a wholly-owned Subsidiary of the Company) other than in the ordinary course of business consistent with past practice, (xii) is a Contract between the Company or any of its Subsidiaries with any labor union, works council, or labor-related organization (a “Collective Bargaining Agreement”), (xiii) is a Contract that is a settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company or a Subsidiary will have any material outstanding obligation after the date of this Agreement, (xiv) constitutes a regulatory agreement or similar Contract that requires that any portion of any Owned Real Property be leased or sold to any Persons set forth in such agreement or on specified terms and conditions, (xv) is a Contract that is for the employment or engagement of any director Person on a full-time or executive officer part-time basis, including directors, employees, and independent contractors at annual compensation in excess of $100,000 (other than offer letters for at-will employment that can be terminated by the Company at any time with no liability), (xvi) obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contractor, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made except in the ordinary course of business, any other Person, (xvii) contains a standstill or similar provision pursuant to which are material to the Company and or any of its Subsidiaries has agreed not to acquire assets or securities of the other Person or any of its Affiliates, (xviii) is a Material Real Property Lease or (xix) relates to (A) the acquisition, directly or indirectly, of assets or capital stock or other securities (by merger, capital contribution or otherwise) of any Person or (B) the disposition, directly or indirectly, of assets of the Company or its Subsidiaries, taken as in each case with a wholetotal consideration in excess of $250,000 since January 1, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”2014.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Each Material Contract is a legal, valid and binding obligation on the Company (and/or each such Subsidiary of the Company or its Subsidiaries party thereto andthereto) and is in full force and effect, to the Company’s Knowledge, the other parties thereto, (ii) and neither the Company nor any of its Subsidiaries party thereto, nor, to the knowledge of the Company’s Knowledge, any other party thereto thereto, is in breach or violation of, or default under, any such Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute such a breach or default thereunder by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto, except for such failures to be in full force and effect and such breaches and defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As of the date hereof, neither the Company nor any of its Subsidiaries has received written notice of any violation of, or default underunder any Material Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As of the date hereof, neither the Company nor any of its Subsidiaries has received written notice of termination of any Material Contract and (iii) except as would not, individually or in the aggregate, reasonably be expected to the Company’s Knowledge, the have a Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Horton D R Inc /De/), Merger Agreement (Forestar Group Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts Agreement, the Company Benefit Plans, agreements filed as exhibits to the Company SEC Reports filed prior to Documents and except as set forth on Section 3.20 of the Company Disclosure Schedule, as of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving that (A) imposes any restriction on the payment right or receipt ability of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries to compete with any third partyother person or acquire or dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in a material manner, other than those contained in customary oil and gas leases;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $50 million, except any transaction among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(iv) any Contract that limits provides for the acquisition or disposition of assets, rights or properties with a value in excess of $100 million;
(v) any material respect joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries and any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Interests;
(vi) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any Contract that obligates the Company or any of their respective employees its Subsidiaries to compete in make any material line loans, advances or capital contributions to, or investments in, any person other than (A) advances for expenses required under customary joint operating agreements and customary advances to operators of business Oil and Gas Interests not covered by a joint operating agreement or with participation agreement or (B) any Person loan or entity capital contribution to, or in any geographic area or during any period of time in a manner that is material to investment in, (1) the Company and or one of its wholly owned Subsidiaries, taken as a whole;
(v2) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets person (other than assets purchased pursuant to capital expenditures) an officer, director or share capital or other equity interests employee of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, ) that is material less than $100 million to the Company and its Subsidiaries;
such person or (vii3) any Contract between officer, director or employee of the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required that is less than $5 million to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Actsuch person;
(viii) any Contract (other than Contracts granting providing for the sale by the Company Options) giving the other party the right to terminate such Contract as a result or any of this Agreement or the consummation its Subsidiaries of the Merger where Hydrocarbons that (A) such has a remaining term of greater than 60 days or (B) contains a “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(ix) any Contract that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, covering in excess of 15,000 barrels of oil equivalent per day of Hydrocarbons (calculated on a yearly average basis);
(x) any joint development agreement, exploration agreement, participation or program agreement or similar agreement that contractually requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value to make expenditures that would reasonably be expected to be in excess of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made $200 million in the ordinary course of business, which are material to aggregate during the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of 12-month period following the date of this Agreement;
(xi) any acquisition Contract that contains “earn out” or other contingent payment obligations, except as would not have a Company Material Adverse Effector remaining indemnity or similar obligations (other than asset retirement obligations, (i) each Material Contract is a legal, valid plugging and binding obligation abandonment obligations and other reserves of the Company or its Subsidiaries party thereto and, set forth in the Company Reserve Reports and the GOM Reserve Reports that have been provided to Parent prior to the Company’s Knowledgedate of this Agreement), that could reasonably be expected to result in payments after the other parties thereto, (ii) neither date hereof by the Company nor or any of its Subsidiaries nor, in excess of $100 million; and
(xii) any material lease or sublease with respect to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractLeased Real Property.
Appears in 2 contracts
Samples: Merger Agreement (Freeport McMoran Copper & Gold Inc), Merger Agreement (Plains Exploration & Production Co)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date Subsections (i) through (viii) of this Agreement, as of the date hereof, none Section 3.16 of the Company or its Subsidiaries is Disclosure Schedule contain a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 list of the Instructions following types of contracts and agreements to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by which the Company or any of its Subsidiaries with is a party (such contracts, agreements and arrangements as are required to be set forth in Section 3.16(a) of the Company Disclosure Schedule being the "Material Contracts"):
(i) each contract and agreement which is likely to involve consideration of more than $25,000, in the aggregate, over the remaining term of such contract;
(ii) all material broker, distributor, dealer, franchise, agency, sales promotion, market research, marketing, consulting, advertising, transfer, software, and research and development contracts or agreements to which the Company or any third of its Subsidiaries is a party;
(iii) all clinical trial or clinical research organization, manufacturing or supply, collaboration, and guarantee contracts or agreements to which the Company or any of its Subsidiaries is a party;
(iv) all management contracts (excluding contracts for employment) and contracts with other consultants, including any Contract contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries to which the Company or any of its Subsidiaries is a party;
(v) all contracts and agreements evidencing indebtedness for borrowed money in excess of $10,000;
(vi) all material contracts and agreements with any Governmental Authority to which the Company or any of its Subsidiaries is a party;
(vii) all contracts and agreements that limits limit, or purport to limit, in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person person or entity or in any geographic area or during any period of time time; and
(viii) all material contracts or arrangements that result in any person or entity holding a manner that is material power of attorney from the Company or, to the Company and its Subsidiariesknowledge of the Company, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material relates to the Company and Company, its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As Except as would not prevent or materially delay consummation of the date of this Agreement, except as Merger and would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation agreement, the Company is not in material default under any Material Contract and none of the Company or its Subsidiaries party thereto and, Material Contracts has been canceled by the other party; (ii) to the Company’s Knowledge's knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any no other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and Contract; (iii) to the Company’s Knowledge, the Company and its Subsidiaries have are not received in receipt of any written claim or notice of default, termination or cancellation default under any such agreement; and (iv) neither the execution of this Agreement nor the consummation of the Merger shall constitute a default, give rise to cancellation rights, or otherwise adversely affect any of the Company's rights under any Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 2 contracts
Samples: Merger Agreement (Cell Pathways Inc /De), Merger Agreement (Osi Pharmaceuticals Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed (x) as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none set forth on Section 4.19 of the Company Disclosure Schedules, (y) for Reinsurance Agreements and Insurance Contracts (including insurance or annuity policies and contracts, or any binders, slips, certificates, endorsements or riders thereto) and (z) for contracts, agreements, instruments or commitments that relate to Investment Assets (including the disposition, custody or acquisition thereof), neither the Company nor any of its Subsidiaries is a party to or expressly bound byby any agreement, lease, easement, license, contract, note, bond, mortgage, indenture or other legally binding obligation (each, a “Contract”) that:
(i) any Contract that would be required to be filed by the Company pursuant to as a “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) (A) limits in any Contract involving material respect either the payment type or receipt line of amounts by business in which the Company or any of its SubsidiariesSubsidiaries or any Person that controls, or relating to material is under common control with, the Company may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions) or (B) prohibits the Company or any of its Subsidiaries or any Person that controls, or is under common control with, the Company from soliciting any client or customer;
(iii) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, Indebtedness (for borrowed money of the Company or any Subsidiary of the Company in excess of $10,000,000, other than any Indebtedness solely between or among the Company and any of its Subsidiaries);
Subsidiaries or (iiiB) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving is a sharing of profits, losses, costs or liabilities guarantee by the Company or any of its Subsidiaries with of such Indebtedness of any third partyperson other than the Company or a wholly-owned Subsidiary of the Company;
(iv) any Contract that limits in any material respect or restricts the ability of the Company or any of its Subsidiaries to (A) declare or any pay dividends or make distributions in respect of their respective employees to compete in capital stock, partner interests, membership interests or other equity interests, (B) pledge capital stock or (C) issue any material line guarantee of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeIndebtedness;
(v) is a partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any material Contract entered into after June 30partnership, 2011 limited liability company or not yet consummated, for joint venture in which the acquisition or dispositionCompany owns, directly or indirectly (including by mergerindirectly, consolidationany voting or economic interest, combination or amalgamation) of assets (other than assets purchased pursuant with respect to capital expenditures) or share capital or other equity interests any wholly-owned Subsidiary of another Personthe Company;
(vi) involves the settlement of any Contract pending or threatened claim, action or proceeding that requires payment obligations after the date hereof in excess of $5,000,000, other than claims settled under Insurance Contracts in the ordinary course of business and within applicable policy limits;
(vii) has been entered into between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its SubsidiariesSubsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 under the Exchange Act), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) including any Contract between pursuant to which the Company or any of its Subsidiaries and has an obligation to indemnify such officer, director, Affiliate or family member;
(viii) (A) grants any director right of first refusal, right of first offer, or executive officer similar right with respect to any material assets, rights, or properties of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to obligates the Company and or any of its Subsidiaries under such Contract, taken as whole, to conduct business on an exclusive or preferential basis or that is material to the Company and its Subsidiaries; andcontains a “most favored nation” or similar covenant with any third party;
(ix) provides for any other contracts and agreementsguaranty of liabilities or obligations by the Company or any Subsidiary thereof, whether or not made in the ordinary course of business, which are each case that is material to the Company and its Subsidiaries, taken as a whole, other than any guaranty by the Company or a Subsidiary thereof of any of the conduct obligations of their respective businessesthe Company or another wholly-owned Subsidiary thereof;
(A) relates to the disposition or acquisition (directly or indirectly) by the Company or any of its Subsidiaries of any material assets or properties of the Company or its Subsidiaries, other than any such Contracts that are no longer executory or (B) pursuant to which the absence Company or any of its Subsidiaries will acquire any material interest in any other Person or other business enterprise;
(xi) pursuant to which would have the Company or any of its Subsidiaries is restricted in its right to assert, use or register any material Company Intellectual Property, including coexistence agreements, settlement agreements, covenants not to xxx or similar agreements or arrangements; or
(xii) is a Company Material Adverse Effect. collective bargaining agreement or other agreement with any labor union, works council, trade union, labor association or other employee representative organization.
(b) Each such Contract described in clauses (i) through (ixxii) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b” Except as otherwise set forth on Section 4.19(b) As of the date of this AgreementCompany Disclosure Schedules, except as would not have a Company Material Adverse Effect, (i) each Material Contract and each Contract pursuant to which the Company or any of its Subsidiaries grants or obtains rights to material Intellectual Property (excluding Contracts granting rights to use generally commercially available, off-the-shelf software (including “shrink-wrap” or “click-wrap” agreements)) (“Material IP Contract”) is a legal, valid and binding obligation of the Company or its Subsidiaries the Subsidiary that is party thereto thereto, and, to the knowledge of the Company’s Knowledge, the and each other parties party thereto, (ii) neither is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as, individually or in the aggregate, is not and would not be reasonably expected to be, material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the knowledge of the Company’s Knowledge, any other party thereto to a Material Contract or Material IP Contract is in breach or violation of any provision of, or in default under, any Material Contract or Material IP Contract, and no event has occurred that, with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute such a breach breach, violation or violation ofdefault, except for breaches, violations or default underdefaults that, any Material Contract individually or in the aggregate, is not and (iii) would not be reasonably expected to the Company’s Knowledgebe, material to the Company and its Subsidiaries have not received any written claim or notice Subsidiaries, taken as a whole. The Company has previously made available true and complete copies of default, termination or cancellation under any such each Material ContractContract as of the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Brookfield Asset Management Reinsurance Partners Ltd.), Merger Agreement (American National Group Inc)
Material Contracts. (a) Except for As of the date of this Agreement Agreement, and except as disclosed by Section 3.09(a) of the WBKC Disclosure Schedule, neither WBKC nor any of its Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under the following material contracts (collectively, the “Material Contracts”):
(i) any contract relating to the borrowing of money in excess of $100,000 by WBKC or any of its Subsidiaries or the guarantee by WBKC or any of its Subsidiaries of any such obligation (other than FHLB of Indianapolis advances, contracts pertaining to fully-secured securities repurchase agreements, trade payables, bankers’ acceptances, and contracts relating to borrowings or guarantees made in the ordinary course of business);
(ii) any contract containing covenants that limit the ability of WBKC or any of its Subsidiaries to compete in any line of business or with any Person, or to hire or engage the services of any Person, or that involve any restriction of the geographic area in which, or method by which, WBKC or any of its Subsidiaries may carry on its business (other than as may be required by Law (as defined in Section 3.05(a)) or any Governmental Authority (as defined in Section 5.13)), or any contract that requires it or any of its Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the subject matter of such contract;
(iii) any contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization, joint venture, or other business combination, or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to WBKC or any of its Subsidiaries;
(iv) any lease of real or personal property providing for Contracts total aggregate lease payments by or to WBKC or its Subsidiaries during the remaining term of the agreement in excess of $50,000 or having a remaining term in excess of two years, other than financing leases entered into in the ordinary course of business in which WBKC or any of its Subsidiaries is the lessor;
(v) any contract that involves total aggregate expenditures or receipts by WBKC or any of its Subsidiaries in excess of $100,000 during the remaining term of the agreement or having a remaining term in excess of two years, excluding agreements relating to loans and deposits with Wolverine Bank customers;
(vi) any material licensing agreement or other contract with respect to patents, trademarks, copyrights, or other intellectual property, including software agreements (other than off-the-shelf and similar software generally available to the public) and including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of its intellectual property; or
(vii) any other document, instrument or agreement that is required to be filed as exhibits an exhibit to any WBKC SEC Report (as defined in Section 3.36) (pursuant to Items 601(b)(4) or 601(b)(10) of Regulation S-K under the Company 0000 Xxx) that has not been filed as an exhibit to, or incorporated by reference in, WBKC’s SEC Reports filed prior to the date of this Agreement, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As With respect to each of the date of this Agreement, except as would not have a Company WBKC’s Material Adverse Effect, Contracts: (i) each Material Contract is a legalin full force and effect (subject to iv), valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, below); (ii) neither the Company WBKC nor any of its Subsidiaries noris in material default thereunder, as such term or concept may be defined in each Material Contract; (iii) neither WBKC nor any of its Subsidiaries has repudiated or waived any material provision of any Material Contract; (iv) to the CompanyWBKC’s Knowledgeknowledge, any no other party thereto is in breach or violation of, or default under, to any Material Contract is in default or otherwise not in compliance with any material term or condition of any Material Contract; and no event (v) a true and complete copy of each Material Contract has occurred or not occurred through been previously delivered to Horizon.
(c) Except as disclosed in Section 3.09(c) of the Company’s or WBKC Disclosure Schedule, neither WBKC nor any of its Subsidiaries’ action or inaction orSubsidiaries have entered into any interest rate swaps, to the Company’s Knowledgecaps, the action or inaction of any third partyfloors, that with notice or lapse of time or both would constitute a breach or violation ofoption agreements, futures and forward contracts, or default underother similar risk management arrangements, any Material Contract and (iii) to whether entered into for WBKC’s own account or for the Company’s Knowledge, the Company and account of one or more of its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contracttheir respective customers.
Appears in 2 contracts
Samples: Merger Agreement (Wolverine Bancorp, Inc.), Merger Agreement (Horizon Bancorp /In/)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Schedule 4.19 of the Company SEC Reports filed prior to Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, as of the date hereof, none (provided that Schedule 4.19 of the Company Disclosure Letter need not list any Material Contract that is also a Company Benefit Plan listed in Schedule 4.10(a) of the Company Disclosure Letter):
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) to which the Company or any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Actparty;
(ii) each Contract (other than agreements solely between or among the Company and its Subsidiaries) (A) evidencing Indebtedness of the Company or any Contract involving the payment of its Subsidiaries or receipt (B) that creates a capitalized lease obligation of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any in each case with an aggregate principal amount in excess of its Subsidiaries)$20,000,000;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by each Contract to which the Company or any Subsidiary of its Subsidiaries with any third party;
the Company is a party that (ivA) any Contract that limits restricts in any material respect the ability of the Company or any Affiliate of its Subsidiaries or any of their respective employees the Company to compete in any material business (or line of business business) or with any Person or entity or in any geographic area geographical area, (B) requires the Company or during any period Affiliate of time the Company to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in a manner favor of any third party;
(iv) any acquisition or divestiture Contract that is material contains “earn out”, indemnification or other similar contingent obligations, that would reasonably be expected to result in payments by or to the Company and or any of its Subsidiaries in excess of $10,000,000;
(v) each Contract for the lease of personal property or real property by the Company or any of its Subsidiaries involving payments in excess of $5,000,000 in any calendar year that are not terminable without penalty or other liability to the Company or any of its Subsidiaries within sixty (60) days;
(vi) each Contract that would reasonably be expected to require the disposition of any material assets or line of business of the Company or its Subsidiaries (or, after the First Merger Effective Time, Parent or its Subsidiaries);
(vii) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any material amount of the assets or properties of the Company or its Subsidiaries, taken as a whole, in each case excluding unexercised purchase options under Company Real Property Leases;
(vviii) any material Contract entered into after June 30each joint venture, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital partnership or other equity interests of another Person;
(vi) any Contract between similar agreements or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between arrangements in which the Company or any of its Subsidiaries and owns any director interest valued at more than $10,000,000, without regard to voting or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Acteconomic interest;
(viiiix) each Contract among the Company and/or any of its Subsidiaries and Former Impala Parent and or any of its Subsidiaries with continuing obligations of any party thereto;
(x) each Contract relating to a Company Related Party Transaction;
(other than Contracts granting Company Optionsxi) giving the other party the right to terminate such each Contract as a result of this Agreement or the consummation of the Merger where with (A) such Contract requires any paymentagent, taken as wholedistributor or sales representative, that is material (B) any insurance company, or (C) any other vehicle supplier (including used-vehicle dealers, rental car and fleet lease companies, auto lenders and charitable organizations), in each case involving aggregate net proceeds or other payments to the Company and its Subsidiaries or in excess of $10,000,000 for the Company’s fiscal year ended January 2, 2022;
(Bxii) the value of the outstanding receivables due to each Contract where the Company and or any of its Subsidiaries grants any license, covenant not to assert, release, agreement not to enforce or prosecute, or other similar immunity to any Person under such Contractor to any material item of Company Owned Intellectual Property, taken as whole, that is material to other than Ordinary Course Licenses;
(xiii) each Contract where the Company and or any of its Subsidiaries; and
(ix) Subsidiaries is granted any license, covenant not to assert, release, agreement not to enforce or prosecute, or other contracts and agreements, whether immunity by any Person under or not made in the ordinary course of business, which to any third Person Intellectual Property that are material to the Company and its Subsidiaries, taken as a whole, other than Ordinary Course Licenses and licenses for Open Source Software;
(xiv) each customer Contract with any Top Company Customer;
(xv) any written indemnification agreement between the Company and any of its Subsidiaries and any Indemnified Person;
(xvi) each Contract entered into in connection with the settlement of a pending or threatened Proceeding with material ongoing obligations of the conduct Company or any of their respective businessesits Subsidiaries (other than solely ongoing confidentiality obligations) other than (A) releases that are immaterial in nature or amount entered into in the ordinary course of business, or (B) settlement Contracts only involving the absence payment of which would have cash in amounts that do not exceed $2,000,000 in any individual case; and
(xvii) each Contract (excluding any leases of real or personal property and any Contract of a Company Material Adverse Effect. Each such Contract described in clauses type covered by clause (ixi) through (ixabove) above and each such Contract that would be a Material Contract but by its terms calls for the exception of being filed as an exhibit annual payments to or by the Company SEC Reports is referred to herein as a “Material Contract”or any of its Subsidiaries in excess of $10,000,000.
(b) As Collectively, the Contracts described in Section 4.19(a) are herein referred to as the “Company Contracts”. A complete and correct copy of each of the Company Contracts (including all amendments, modifications, waivers and supplements thereto) as of the date of this Agreement, except Agreement has been made available to Parent. Except as has not had and would not have reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Company Contract is a legal, valid valid, binding and binding obligation of enforceable in accordance with its terms on the Company or and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company’s Knowledge, the each other parties party thereto, (ii) and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company’s Knowledge, is any other party thereto is to any such Company Contract in breach or violation ofdefault thereunder, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or the lapse of time or the giving of notice or both would constitute a breach default thereunder by the Company or violation ofits Subsidiaries, or default underor, to the knowledge of the Company, any Material Contract and (iii) other party thereto. There are no pending disputes, to the knowledge of the Company’s Knowledge, alleging the material failure of the Company and or its Subsidiaries have not to comply with any material term of any Company Contract, and, as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written claim or notice of the intention of any other party to any Company Contract to terminate (in whole or in part) for default, termination convenience or cancellation under otherwise any Company Contract, nor to the knowledge of the Company, is any such Material Contractparty threatening to do so.
Appears in 2 contracts
Samples: Merger Agreement (Ritchie Bros Auctioneers Inc), Merger Agreement (IAA, Inc.)
Material Contracts. (a) Except for this Agreement and except for Schedule 5.13(a) sets forth all of the following Contracts filed as exhibits to which the Company SEC Reports filed prior to the date of this Agreement, as or any of the date hereofSubsidiaries is a party or by which it is bound (collectively, none the “Material Contracts”):
(i) Contracts with any Stockholders or any current officer or director of the Company or its any of the Subsidiaries is or any Affiliate (other than a party to or bound by:
(iSubsidiary) any Contract that would be required to be filed by of the Company pursuant to Item 4 or any of the Instructions to Exhibits of Form 20-F under the Exchange ActStockholders;
(ii) Contracts with any Contract involving labor union or association representing any employee of the payment Company or receipt any of amounts the Subsidiaries;
(iii) Contracts for the sale of any of the assets of the Company or any of the Subsidiaries other than in the Ordinary Course of Business;
(iv) Contracts relating to the acquisition by the Company or any of its Subsidiaries, the Subsidiaries of any operating business or relating to material Indebtedness (the capital stock of any other than any Indebtedness solely between the Company and any of its Subsidiaries)Person;
(iiiv) Contracts relating to the incurrence of Indebtedness, or the making of any material loans;
(vi) Contracts for joint venture contractsventures, strategic cooperationalliances or partnerships;
(vii) Contracts containing covenants of the Company or any of the Subsidiaries not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with the Company or any of the Subsidiaries in any line of business or in any geographical area;
(viii) Contracts under which the Company or any of the Subsidiaries has made advances or loans to any other Person;
(ix) Contracts providing for severance, partnership arrangements retention, change in control or other similar payments;
(x) Contracts for the employment of any individual on a full-time, part-time or consulting or other basis; and
(xi) outstanding agreements outside the ordinary course of business involving a sharing of profitsguaranty, lossessurety or indemnification, costs direct or liabilities indirect, by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, Subsidiary has received any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction written notice of any third party, default or event that with notice or lapse of time time, or both both, would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, by the Company and its the Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract, except for such defaults that are no longer continuing or would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Bailey Lee Ann), Stock Purchase Agreement (Sixx Holdings Inc)
Material Contracts. (a) Except for this Agreement Agreement, the Company Benefit Plans and except for Contracts any agreements filed as exhibits to the Company SEC Reports filed prior to Documents, as of the date of this Agreement, as neither the Company nor any of its Subsidiaries (or, to the knowledge of the date hereofCompany, none any of the Company or its Subsidiaries Significant JV Entities) is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving that (A) imposes or purports to impose, any material restriction or prohibition on the payment right, ability, manner or receipt locations of amounts by the Company or Company, any of its SubsidiariesSubsidiaries or any Significant JV Entity to compete with any other person or acquire or dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company, its Subsidiaries or relating to any Significant JV Entity in a material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)manner;
(iii) any material mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness or other financing or capital lease of the Company, its Subsidiaries or any Significant JV Entity in an amount in excess of $25 million;
(iv) any joint venture contracts, strategic cooperationventure, partnership arrangements or limited liability company agreement or other agreements outside similar Contract relating to the ordinary course formation, creation, operation, management or control of business involving any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(v) any Contract obligating the Company and/or its Subsidiaries to incur annual capital expenditures in excess of $50 million;
(vi) any Contract expressly limiting or restricting the ability of the Company, any of its Subsidiaries or any Significant JV Entity to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company, any of its Subsidiaries or any Significant JV Entity in excess of $100 million;
(viii) any Labor Agreement;
(ix) any Contract that is a sharing settlement, conciliation or similar agreement with any Governmental Entity in excess of profits$10 million;
(x) each Contract that provides for the acquisition, lossesdisposition, costs license, use, distribution or liabilities outsourcing of assets, services, businesses, equity interests, rights requiring annual payments by the Company, its Subsidiaries or the Significant JV Entities in excess of $50 million, in each case other than Company Midstream Contracts;
(xi) each Contract that provides for the purchase or sale by Company or any of its Subsidiaries of hydrocarbons, produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending, disposal or similar midstream services (including hydrocarbon or water gathering, processing, treating, handling, disposal, recycling, redelivery, balancing, purchase, sale, fractionation, transportation, interconnection or similar agreements) for which the material firm service or capacity terms provide for, in each case, annual payments after the date hereof by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect excess of $50 million, or annual revenues after the ability of date hereof to the Company or any of its Subsidiaries or any in excess of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to $20 million (collectively, the “Company and its Subsidiaries, taken as a whole;Midstream Contracts”); and
(vxii) any material Contract lease or sublease with respect to a Company Leased Real Property, other than capacity leases and storage leases, in each case, entered into after June 30in the ordinary course of business and that during the twelve months ended December 31, 2011 2023 individually required, or not yet consummatedis reasonably expected in the future to require, for the acquisition annual revenues or disposition, directly or indirectly (including payments by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value in excess of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”$25 million.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Equitrans Midstream Corp), Merger Agreement (EQT Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this AgreementNo Acquired Company, as of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:by any of the following (a Contract responsive to any of the following categories being hereinafter referred to as a “Material Contract”):
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 other than as listed in 3.09(a)(i) of the Instructions to Exhibits Disclosure Schedule, any lease (whether of Form 20-F under real or personal property) providing for annual rentals of the Exchange Actequivalent of $20,000 or more;
(ii) other than as listed in 3.09(a)(ii) of the Disclosure Schedule, any Contract involving the payment pursuant to which any Intellectual Property Right or receipt of amounts by the Technology, including any Third Party IP, is licensed, sold, assigned or otherwise conveyed or provided to any Acquired Company or pursuant to which any of its SubsidiariesPerson has agreed not to enforce any Intellectual Property Right against any Acquired Company, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)Contracts for Generally Available Software;
(iii) any material joint venture contractsContract pursuant to which any Intellectual Property Right or Technology is or has been licensed (whether or not such license is currently exercisable), strategic cooperationsold, partnership arrangements assigned or other agreements outside the ordinary course of business involving otherwise conveyed or provided to a sharing of profitsthird party by any Acquired Company, losses, costs or liabilities by the pursuant to which any Acquired Company or has agreed not to enforce any of its Subsidiaries with Intellectual Property Right against any third party;.
(iv) any Contract that limits in imposing any material respect restriction on any Acquired Company’s right or ability, or, after the Closing Date, the right or ability of the Company Purchaser or any of its Subsidiaries or any of their respective employees Affiliates (A) to compete in any material line of business or with any Person or entity or in any geographic area or during which would so limit the freedom of Purchaser or any period of time its Affiliates after the Closing Date (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by any Acquired Company or any related Intellectual Property Right), (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in a any other manner that is material with any other Person, or (C) to the Company and its Subsidiaries, taken as a wholedevelop or distribute any Intellectual Property Right or Technology;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamationother than as listed in 3.09(a)(v) of assets (the Disclosure Schedule, any partnership, joint venture or any sharing of revenues, profits, losses, costs or liabilities or any other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personsimilar Contract;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) entered into since inception pursuant to which any Acquired Company and its Subsidiarieshas any current or future rights or obligations;
(vii) other than as listed in 3.09(a)(vii) of the Disclosure Schedule, any Contract between relating to Indebtedness or the Company deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Actasset);
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material relating to the Company and its Subsidiaries acquisition, issuance or (B) the value transfer of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andany securities;
(ix) any Contract relating to any interest rate, currency or commodity derivatives or hedging transaction;
(x) any Contract under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of any Acquired Company or (B) any Acquired Company has directly or indirectly guaranteed liabilities or obligations of any other contracts Person (in each case other than endorsements for the purposes of collection in the ordinary course of business and agreementsintercompany guarantees among the Acquired Companies);
(xi) other than as listed in 3.09(a)(xi) of the Disclosure Schedule, whether any Contract relating to the creation of any Lien (other than Permitted Liens) with respect to any asset of any Acquired Company;
(xii) any Contract which contains any provisions requiring any Acquired Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services in the ordinary course of business consistent with past practice);
(xiii) other than as listed in 3.09(a)(xiii) of the Disclosure Schedule, any Contract with any Related Person;
(xiv) any Contract with a Governmental Authority generating revenues or that has been executed within six months prior to the date of this Agreement;
(xv) any employment, severance, retention, change-in-control, bonus or other Contract with any current or former employee, officer, director, advisor or consultant of any Acquired Company (A) pursuant to which any Acquired Company has any current or future rights or obligations other than as a result of normal employment status, (B) that provides for the payment of any cash or other compensation or benefits upon the consummation of the Transaction, or (C) that otherwise restricts any Acquired Company’s ability to terminate the employment or engagement of such individual without penalty or liability (excluding any penalty or liability in respect of the employee’s notice period and right not to be unfairly dismissed), other than, in each case, Contracts entered into in the ordinary course of business consistent with past practice with any advisor, consultant or employee of any Acquired Company;
(xvi) any Contract that cannot be provided to the Purchaser; and
(xvii) any other Contract not made in the ordinary course of business, which are business that is material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”any Acquired Company.
(b) As Subject to the limitations set forth in Section 5.03(b), Seller has made available to Purchaser accurate and complete copies of all written Contracts identified in Section 3.09(a) of the date Disclosure Schedule, including all amendments thereto. Subject to the limitations set forth in Section 5.03(b), Section 3.09(a) of this Agreementthe Disclosure Schedule provides an accurate description of the material terms of each Material Contract identified in Section 3.09(a) of the Disclosure Schedule that is not in written form. Seller has notified Purchaser of any Contracts or portions thereof that Seller has withheld from Purchaser pursuant to Section 5.03(b) and has disclosed to Purchaser any material liabilities or obligations under any such Contracts, except as would not have a Company Material Adverse Effect, to the extent permitted thereunder.
(ic) each Each Material Contract is a legal, valid and binding obligation agreement of the Acquired Company or its Subsidiaries party thereto thereto, and is in full force and effect, and no Acquired Company is and, to the Company’s KnowledgeKnowledge of Seller, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any no other party thereto is in default or breach in any material respect under the terms of any such Contract, and, to the Knowledge of Seller, other than as set forth in Section 3.04 of the Disclosure Schedule regarding the consummation of the Transaction, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (i) result in a violation or breach of any of the provisions of any Material Contract, (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract, (iii) give any Person the right to accelerate the maturity or performance of any grant or rights or other obligation under a Material Contract, or (iv) give any Person the right to cancel, terminate or modify any Material Contract.
(d) No Acquired Company has received any written notice or, to the Knowledge of Seller, any other communication regarding any violation or breach of, or default under, any Material Contract and no event Contract.
(e) No Person is renegotiating, or has occurred a right (or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, has asserted a right) pursuant to the Company’s Knowledge, the action or inaction terms of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledgerenegotiate, the any amount paid or payable to any Acquired Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract or any other material term or provision of any Material Contract.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Esports Entertainment Group, Inc.), Stock Purchase Agreement (Esports Entertainment Group, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as of the date hereof, none Section 3.18(a) of the Company or its Subsidiaries is Disclosure Schedule sets forth a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 true and complete list of each of the Instructions following types of Contracts to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by which the Company or any of its Subsidiaries with has any third party;current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date hereof, but excluding any purchase orders, invoices, requisition forms, or other form purchasing documents and any Company Plans disclosed on Section 3.16(a) of the Company Disclosure Schedule:
(ivi) (A) contains any Contract exclusivity or similar provision that limits in any material respect the ability of is binding on the Company or any of its Subsidiaries (or would purport to be binding, after the Effective Time, on Parent or any of their respective employees its Subsidiaries) or (B) otherwise limits or restricts the Company or any of its Subsidiaries (or would purport to compete limit or restrict, after the Effective Time, Parent or any of its Subsidiaries) from (1) engaging or competing in any material line of business in any location or with any Person, (2) selling any products or services of or to any other Person or entity or in any geographic area region, or during (3) obtaining products or services from any period Person, in each case of time in a manner clause (A) and clauses (1), (2) and (3) of clause (B), that is material to the Company and its Subsidiaries, taken as a whole;
(vii) includes (A) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly “most favored nation” terms and conditions (including with respect to pricing) granted by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its SubsidiariesSubsidiaries to a Third Party, on the one hand, and or (B) any of their respective Affiliates (other than arrangement whereby the Company or any of its Subsidiaries)Subsidiaries grants any right of first refusal or right of first offer or similar right to a Third Party, on the other hand, that involves payments, taken as whole, in each case of clauses (A) and (B) that is material to the Company and its Subsidiaries, taken as a whole;
(viiiii) any Contract between the Company is a joint venture, strategic alliance or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where partnership agreement that either (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the conduct Company and its Subsidiaries to make expenditures in excess of $300,000 in the aggregate during the 12-month period following the date hereof;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly-owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $500,000 individually;
(v) is a Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $100,000;
(vi) is a material Contract with respect to any Company Intellectual Property Rights and not for “off-the-shelf” software or hardware generally commercially available on standard and non-discriminatory terms;
(vii) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale or purchase agreement or other similar agreement, in each case for the purchase or sale of a corporation, partnership, or other business organization or business thereof (including all or substantially all of the assets of such business), pursuant to which (A) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries or (B) any other Person has the right to acquire any equity interests in the Company or any of its Subsidiaries;
(viii) is a settlement or similar agreement with any Governmental Authority or arbitrator (public or private) (including any corporate integrity agreement, monitoring agreement or deferred prosecution agreement) or order or consent of a Governmental Authority or arbitrator (public or private) (including any consent decree or settlement order) to which the Company or any of its Subsidiaries is subject involving performance on or after the date hereof by the Company or any of its Subsidiaries and in an amount in excess of $100,000 individually;
(ix) any Contract (or series of related Contracts) pursuant to which the Company or any Subsidiary has continuing “earn-out” or similar obligations that could result in payments from the Company or any Subsidiary in an amount in excess of $100,000 per Contract;
(x) any Contract (or series of related Contracts) that creates an obligation of the Company or any of its Subsidiaries to make any capital commitment, loan or capital expenditure in an amount in excess of $100,000 per twelve-month period after the date hereof;
(xi) any Contract with the Subject Company Customers, Suppliers and Dealers;
(xii) any Contract that contains a change in control provision that would be triggered in connection with consummation of the Transactions, provided that (i) such Contract has provided $100,000 or more of revenue to the Company or any of its Subsidiaries, individually or in the aggregate, in the twelve-month period prior to the date hereof, or would reasonably be expected to provide $100,000 or more of revenue to the Company or any of its Subsidiaries, individually or in the aggregate, in the twelve-month period after the date hereof or (ii) such change in control provision expressly requires aggregate payments by the Company or any its Subsidiaries, individually or in the aggregate, in excess of $100,000;
(xiii) any Contract (including any loan) between the Company or any of its Significant Subsidiaries, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary) of the Company or any of its Significant Subsidiaries or any of their respective businesses“associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of its Significant Subsidiaries has an obligation to indemnify such officer, director, Affiliate or family member, but not including any Company Plans;
(xiv) any shareholder, investors rights, registration rights or similar agreement or arrangement;
(xv) any Contract pursuant to which the Company or any of its Subsidiaries has continuing obligations or interests involving (A) “milestone” or other similar contingent payments to be made to or by the Company or any of its Subsidiaries upon the achievement of certain milestones, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or any of its Subsidiaries, in each case (x) which payments after the date hereof would reasonably be expected to be: (i) in the case of suppliers and subcontractors, more than $200,000 in the twelve (12) month period following the date hereof, and (ii) in the case of employees and sales representatives, more than $100,000 in the twelve (12) month period following the date hereof, and (y) that cannot be terminated by the Company or such Subsidiary without more than sixty (60) days’ notice without material payment or penalty;
(xvi) any employment, severance, consulting or other agreements which provide for compensating or providing benefits to, or that otherwise govern the absence terms of employment of, present or former employees or consultants of the Company or its Subsidiaries, which would have provide for base compensation payable to any employee or consultant of the Company or any of its Subsidiaries in excess of $100,000 per year;
(xvii) any material collective bargaining agreement or other material Contract with any labor union;
(xviii) any Contract (including any option agreement) to purchase or sell any interest in real property, and any Company Real Property Lease;
(xix) any Contract relating to the indemnification of a Company Material Adverse Effect. Indemnified Party that deviates from the form of indemnification agreement made available to Parent; or
(xx) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company under Item 1.01 on a Current Report on Form 8-K. Each such Contract of the type described in clauses (i) through (ixxx) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Company Material Contract”.
(b) As Except for this Agreement or as set forth in Section 3.18(a) of the Company Disclosure Schedule, as of the date of this Agreementhereof, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation none of the Company or any of its Subsidiaries is a party thereto to or bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) that is to be performed after the date hereof that has not been filed as an exhibit to or incorporated by reference in a Company SEC Document.
(c) Each Company Material Contract is valid and binding and in full force and effect and, to the Company’s Knowledge, enforceable against the other party or parties theretothereto in accordance with its terms, except as such enforceability may be limited by the Enforceability Limitations. Since December 31, 2015, (i) except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge any other party to a Company Material Contract, is in violation of any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Company Material Contract, and (ii) neither the Company nor any of its Subsidiaries norhas received written notice that it has breached, to the Company’s Knowledge, violated or defaulted under any other party thereto is in breach or violation of, or default under, any Company Material Contract which has not been cured or resolved. True and no event has occurred complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent.
(d) Section 3.18(d) of the Company Disclosure Schedule sets forth a true, complete and correct list of all Contracts providing for the lease of any telecommunication tower or not occurred through similar structure by the Company’s Company or any of its Subsidiaries’ action or inaction or, to including a true, accurate and complete description of the Company’s Knowledgetower location, rental fees, term and renewal options contained therein, in each case as of the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractdate hereof.
Appears in 2 contracts
Samples: Merger Agreement (Id Systems Inc), Merger Agreement (Pointer Telocation LTD)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to As of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by, whether in writing or not, any contract, arrangement, commitment or understanding that:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(iiA) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) contains any material joint venture contracts, strategic cooperation, partnership arrangements exclusivity or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by similar provision (including with respect to any Intellectual Property Rights) that is binding on the Company or any of its Subsidiaries (or, after the Effective Time, purportedly New Charter or any of its Subsidiaries) or (B) otherwise limits or restricts in any material respect the Company or any of its Subsidiaries (or, after the Effective Time, purportedly New Charter or any of its Subsidiaries) from (1) engaging or competing in any material line of business in any location or with any third partyPerson, (2) selling any products or services of or to any other Person or in any geographic region or (3) obtaining products or services from any Person;
(ivii) includes (A) any Contract “most favored nations” terms and conditions (including with respect to pricing) granted by the Company to a Third Party, (B) any arrangement whereby the Company grants any right of first refusal or right of first offer or similar right to a Third Party or (C) any arrangement between the Company and a Third Party that limits or purports to limit in any material respect the ability of the Company or its Subsidiaries (or, after the Effective Time, purportedly New Charter or any of its Subsidiaries Subsidiaries) to own, operate, sell, license, transfer, pledge or any otherwise dispose of their respective employees to compete in any material line assets or business, in each case of business or with any Person or entity or in any geographic area or during any period of time in a manner clauses (A), (B) and (C), that is material to the Company and its Subsidiaries, taken as a whole;
(viii) any material Contract entered into after June 30is a joint venture, 2011 alliance or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, partnership agreement that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where either (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which (B) would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would reasonably be a Material Contract but for the exception of being filed as an exhibit expected to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, require the Company and its Subsidiaries have to make expenditures in excess of $100,000,000 in the aggregate during the 12-month period following the date hereof, but excluding any joint venture, alliance or partnership agreement to which Parent or any of its Subsidiaries is a party;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those between the Company and its Subsidiaries) relating to indebtedness in an amount in excess of $100,000,000 individually;
(v) is a material interest, rate, currency or other swap or derivative transaction (other than those entered into in the ordinary course of business solely for hedging purposes);
(vi) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale agreement or other similar agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration including assumption of debt after the date hereof to be in excess of $100,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries (or any interests therein) after the date of this Agreement with a fair market value or purchase price of more than $100,000,000;
(vii) is a material contract, arrangement, commitment or understanding with the FCC or any other Governmental Authority relating to the operation or construction of Cable Systems that are not received fully reflected in the Franchises;
(viii) is an agreement pursuant to which the Company or any written claim of its Subsidiaries manages, operates or notice provides material services to any Cable Systems that are not, directly or indirectly, wholly owned by the Company (including any agreement pursuant to which the Company or any of default, termination or cancellation under its Subsidiaries is required to cause any such Cable Systems to be included in programming service distribution agreements and other similar agreements to which the Company or any of its Subsidiaries are party); or
(ix) is a settlement or similar agreement with any Governmental Authority or order or consent of a Governmental Authority to which the Company or any of its Subsidiaries is subject involving future performance by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries, taken as a whole; (each such contract listed in Section 4.19 of the Company Disclosure Schedule and any contract of the Company or any of its Subsidiaries that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than any Company Plan), a “Company Material Contract”).
Appears in 2 contracts
Samples: Merger Agreement (Charter Communications, Inc. /Mo/), Merger Agreement (Time Warner Cable Inc.)
Material Contracts. (a) Except for this Agreement REIT II has made available to REIT III a true, correct and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date complete copy of this Agreement, each Contract in effect as of the date hereof, none of the Company hereof to which REIT II or its Subsidiaries any REIT II Subsidiary is a party to or by which any of its properties or assets are bound bythat:
(i) any Contract that would be is required to be filed by with the Company pursuant SEC as an exhibit to Item 4 of REIT II’s Annual Report on Form 10-K for the Instructions to Exhibits of Form 20-F under the Exchange Actyear ending December 31, 2019 or any subsequent current or periodic report;
(ii) any Contract involving is required to be described pursuant to Item 401 of Regulation S-K promulgated under the payment or receipt of amounts by Securities Act;
(iii) obligates the Company REIT II Parties or any of its Subsidiaries, or relating other REIT II Subsidiary to material Indebtedness make non-contingent aggregate annual expenditures (other than principal or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $500,000 and is not cancelable within 90 days without material penalty to the REIT II Parties or any other REIT II Subsidiary;
(iv) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that materially restricts the business of the REIT II Parties or any other REIT II Subsidiary, including upon consummation of the transactions contemplated by this Agreement, or that otherwise restricts the lines of business conducted by the REIT II Parties or any other REIT II Subsidiary or the geographic area in which the REIT II Parties or any other REIT II Subsidiary may conduct business;
(v) is a Contract that obligates the REIT II Parties or any other REIT II Subsidiary to indemnify any past or present directors, officers, or employees of the REIT II Parties or any other REIT II Subsidiary pursuant to which the REIT II Parties or any other REIT II Subsidiary is the indemnitor;
(vi) constitutes (A) an Indebtedness solely between obligation of the Company REIT II Parties or any other REIT II Subsidiary with a principal amount as of the date hereof greater than $500,000 or (B) a Contract under which (1) any Person including REIT II or a REIT II Subsidiary, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of REIT II or REIT II Subsidiary or (2) REIT II or a REIT II Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including REIT II or another REIT II Subsidiary (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vii) requires the REIT II Parties or any other REIT II Subsidiary to dispose of or acquire assets or properties that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $500,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(viii) constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a swap or other hedging transaction of its any type;
(ix) constitutes a loan to any Person (other than a Wholly Owned REIT II Subsidiary) by REIT II or any REIT II Subsidiary in an amount in excess of $500,000;
(x) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of the REIT II Parties or any other REIT II Subsidiary with a third party;
(xi) prohibits the pledging of the capital stock of REIT II or any REIT II Subsidiary or prohibits the issuance of guarantees by any REIT II Subsidiary;
(xii) contains covenants expressly limiting, in any material respect, the ability of REIT II or any REIT II Subsidiary to sell, transfer, pledge or otherwise dispose of any material assets or business of REIT II or any REIT II Subsidiary;
(xiii) contains restrictions on the ability of REIT II or any REIT II Subsidiary to pay dividends or other distributions (other than pursuant to the organizational documents of REIT II and REIT II Subsidiaries);
(iiixiv) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving is with a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third partyGovernmental Authority;
(ivxv) has continuing “earn-out” or other similar contingent purchase price payment obligations, in each case that could result in payments, individually or in the aggregate, in excess of $500,000;
(xvi) is an employment Contract or consulting Contract;
(xvii) is a collective bargaining agreement or other Contract with any labor organization, union or association;
(xviii) is a Contract that limits in with any material respect the ability professional employer organization, staffing agency, temporary employee agency, or similar company or service provider;
(xix) provides severance, retention, or transaction bonus payments, change of the Company control payments, or similar compensation;
(xx) is a settlement agreement or release of claims with any of its Subsidiaries or any of their respective employees to compete in any material line of business current employee or with any Person or entity or in any geographic area or during any period of time in a manner that is material to former employee within the Company and its Subsidiaries, taken as a wholepast five years;
(vxxi) any material Contract entered into after June 30is a lease, 2011 or not yet consummatedsublease, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital license or other equity interests rental agreement or occupancy agreement (written or verbal) which grants any possessory interest in and to any space situated on or in the REIT II Properties or otherwise gives rights with regard to use of another Person;the REIT II Properties; or
(vixxii) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where both (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are business and (B) material to REIT II and the Company and its REIT II Subsidiaries, taken as a whole, .
(b) Each Contract in any of the categories set forth in Section 5.12(a) to which the REIT II Parties or any other REIT II Subsidiary is a party or by which it is bound as of the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports date hereof is referred to herein as a “REIT II Material Contract.”.
(bc) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Each REIT II Material Contract is a legal, valid valid, binding and binding obligation of enforceable on the Company or its Subsidiaries REIT II Parties and each other REIT II Subsidiary that is a party thereto and, to the Company’s KnowledgeKnowledge of REIT II, the each other parties party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (ii) neither regardless of whether enforceability is considered in a proceeding in equity or at Law). The REIT II Parties and each other REIT II Subsidiary has performed all obligations required to be performed by it prior to the Company nor date hereof under each REIT II Material Contract and, to the Knowledge of REIT II, each other party thereto has performed all obligations required to be performed by it under such REIT II Material Contract prior to the date hereof. None of the REIT II Parties or any of its Subsidiaries other REIT II Subsidiary, nor, to the Company’s KnowledgeKnowledge of REIT II, any other party thereto thereto, is in breach or violation of, or default under, any REIT II Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orthat, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute a violation, breach or default under any REIT II Material Contract, except where in each case such breach, violation ofor default, individually or in the aggregate, would not reasonably be expected to have a REIT II Material Adverse Effect. None of the REIT II Parties or any other REIT II Subsidiary has received notice of any violation or default under, or currently owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any REIT II Material Contract and (iii) Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to the Company’s Knowledgehave a REIT II Material Adverse Effect. Since December 31, the Company and its Subsidiaries have not 2019, neither REIT II nor any REIT II Subsidiary has received any written claim or notice of defaultthe intention of any party to cancel, termination terminate, materially change the scope of rights under or cancellation under fail to renew any such REIT II Material Contract.
(d) Section 5.12(d) of the REIT II Disclosure Letter lists each management agreement pursuant to which any third party manages or operates any of the REIT II Properties on behalf of REIT II or any REIT II Subsidiary, and describes the property that is subject to such management agreement, REIT II or the applicable REIT II Subsidiary that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on REIT II or the applicable REIT II Subsidiary and relating thereto (collectively, the “REIT II Management Agreement Documents”). The true, correct and complete copies of all REIT II Management Agreement Documents have been made available to REIT III. Each REIT II Management Agreement Document is valid, binding and in full force and effect as against REIT II or the applicable REIT II Subsidiary and, to the Knowledge of REIT II, as against the other party thereto. Neither REIT II nor any REIT II Subsidiary owes any termination, cancellation or other similar fees or any liquidated damages to any third party manager or operator.
Appears in 2 contracts
Samples: Merger Agreement (Resource Real Estate Opportunity REIT II, Inc.), Merger Agreement (Resource Apartment REIT III, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 4.12(a) of the Company SEC Reports filed prior to the date REIT I Disclosure Letter sets forth a list of this Agreement, each Contract (other than a REIT I Benefit Plan) in effect as of the date hereof, none of the Company hereof to which REIT I or its Subsidiaries any REIT I Subsidiary is a party to or by which any of its properties or assets are bound by:
that: (i) obligates the REIT I Parties or any Contract that would be required other REIT I Subsidiary to be filed by make non- contingent aggregate annual expenditures (other than principal or interest payments or the Company pursuant deposit of other reserves with respect to Item 4 debt obligations) in excess of $500,000 and is not cancelable within ninety (90) days without material penalty to the Instructions to Exhibits of Form 20-F under the Exchange Act;
REIT I Parties or any other REIT I Subsidiary; (ii) contains any Contract involving the payment non-compete or receipt of amounts by the Company or exclusivity provisions with respect to any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period that restricts the business of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company REIT I Parties or any of its Subsidiariesother REIT I Subsidiary, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the including upon consummation of the Merger where transactions contemplated by this Agreement, or that otherwise restricts the lines of business conducted by the REIT I Parties or any other REIT I Subsidiary or the geographic area in which the REIT I Parties or any other REIT I Subsidiary may conduct business; (iii) is a Contract that obligates the REIT I Parties or any other REIT I Subsidiary to indemnify any past or present directors, officers, or employees of the REIT I Parties or any other REIT I Subsidiary pursuant to which the REIT I Parties or any other REIT I Subsidiary is the indemnitor; (iv) constitutes (A) such Contract requires an Indebtedness obligation of the REIT I Parties or any payment, taken other REIT I Subsidiary with a principal amount as whole, that is material to of the Company and its Subsidiaries date hereof greater than $500,000 or (B) the value of the outstanding receivables due to the Company and its Subsidiaries a Contract (including any so called take-or-pay or keepwell agreements) under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
which (ix1) any Person including REIT I or a REIT I Subsidiary, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of REIT I or REIT I Subsidiary or (2) REIT I or a REIT I Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including REIT I or another REIT I Subsidiary (in each case other contracts and agreements, whether or not made than endorsements for the purpose of collection in the ordinary course of business, which are material ); (v) requires the REIT I Parties or any other REIT I Subsidiary to dispose of or acquire assets or properties that (together with all of the Company assets and its Subsidiaries, taken as properties subject to such requirement in such Contract) have a wholefair market value in excess of $500,000, or the conduct of their respective businessesinvolves any pending or contemplated merger, consolidation or the absence of which would have similar business combination transaction; (vi) constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company swap or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction hedging transaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.type; 30
Appears in 2 contracts
Samples: Merger Agreement (Griffin Capital Essential Asset REIT II, Inc.), Merger Agreement (Griffin Capital Essential Asset REIT, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date For purposes of this Agreement, as of "Material Contract" shall mean the date hereof, none of following to which the Company or any of its Subsidiaries is a party to or bound byany of the respective assets are bound:
(i) any Contract that would be required to be "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company pursuant to Item 4 of with the Instructions to Exhibits of Form 20-F under the Exchange ActSEC;
(ii) any Lease;
(iii) any employment or consulting Contract involving (in each case with respect to which the payment Company has continuing obligations as of the date hereof) with any current or receipt former (x) executive officer of amounts the Company, (y) member of the Company Board, or (z) Company Employee;
(iv) any Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, other than (x) any guaranty by the Company or a Subsidiary thereof of any of the obligations of (A) the Company or another wholly-owned Subsidiary thereof or (B) any Subsidiary (other than a wholly-owned Subsidiary) of the Company that was entered into in the ordinary course of business pursuant to or in connection with a customer Contract, , (y) any Contract providing for any guaranty by a Person other than the Company with respect to a liability or obligation of the Company, or (z) any Contract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the ordinary course of business;
(v) any Contract that purports to limit the right of the Company or any of its SubsidiariesSubsidiaries (or, at any time after the consummation of the Merger, Parent or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)) (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(iiivi) any material joint venture contractsContract relating to the disposition or acquisition, strategic cooperationdirectly or indirectly (by merger or otherwise), partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries after the date of this Agreement of assets other than consumable inventory (including, without limitation, fibers);
(vii) any Contract relating to the repair and maintenance of Company Medical Equipment involving payments by the Company in excess of $50,000 in any year;
(viii) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(ivix) any partnership, joint venture or similar Contract that limits is material to the Company and its Subsidiaries taken as a whole;
(x) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, other than accounts receivables and payables;
(xi) any material respect the ability of employee collective bargaining agreement or other Contract with any labor union;
(xii) any other Contract under which the Company or any of its Subsidiaries is obligated to make payment or any incur costs in excess of their respective employees to compete $50,000 in any material line of business or with year and which is not otherwise described in clauses (i)-(xi) above;
(xiii) any Person or entity or Contract which is not otherwise described in any geographic area or during any period of time in a manner clauses (i)-(xii) above that is material to the Company and its Subsidiaries, taken as a whole;, and listed on Section 4.19(b) of the Company Disclosure Letter; or
(vxiv) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, IP Agreement that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer conduct of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of Company's business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) As Section 4.19(b) of the Company Disclosure Letter sets forth a true and complete list as of the date hereof of this Agreementall Material Contracts. The Company has made available to Parent correct and complete copies of all Material Contracts, except as would not have a Company Material Adverse Effect, including any amendments thereto.
(i) each All the Material Contract is a legal, Contracts are valid and binding obligation of on the Company or its Subsidiaries party thereto andapplicable Subsidiary, to the Company’s Knowledgeenforceable against it in accordance with its terms, the other parties theretoand is in full force and effect, (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company’s Knowledge, any other third party thereto is in breach or violation has materially violated any provision of, or default undermaterially failed to perform any obligation required under the provisions of, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orContract, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company’s Knowledge, the Company and its Subsidiaries have not any third party is in breach, or has received any written claim or notice of defaultany material breach, termination or cancellation under of any such Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Emergent Group Inc/Ny), Merger Agreement (Universal Hospital Services Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, as Section 3.15(a) of the date hereof, none Disclosure Schedule lists each of the Company or its Subsidiaries is a party to or bound by:following contracts and agreements of the Pershing Companies (such contracts and agreements being “Material Contracts”):
(i) any Contract that would be required all contracts and agreements relating to be filed by the Company pursuant to Item 4 Indebtedness of the Instructions Pershing Companies to Exhibits a third party that individually are in excess of Form 20-F under the Exchange Act$2,000,000;
(ii) all contracts and agreements with any Contract involving the payment or receipt of amounts by the Company or Governmental Authority to which any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)Pershing Companies is a party;
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements all contracts and agreements that limit or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect purport to limit the ability of the Company or any of its Subsidiaries or any of their respective employees the Pershing Companies to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to time;
(iv) all contracts and agreements between or among any of the Company Pershing Companies and its Subsidiaries, taken as a wholethe Seller or any Affiliate of the Seller;
(v) any material Contract all contracts and agreements, other than option and margin agreements entered into after June 30in the ordinary course of business, 2011 to which any of the Pershing Companies is a party requiring the payment of money in excess of $1,000,000 during the 12 month period ending on the date hereof or not yet consummatedthat would, for on an annualized basis, have required such payment during such period; provided, however, that with respect to those contracts and agreements the acquisition or dispositionterms of which prohibit the Seller from disclosing their contents, directly or indirectly (including by merger, consolidation, combination or amalgamation) the Seller shall only provide the Purchaser with a list of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personsuch contracts and agreements;
(vi) any Contract between all Company IP Licenses, other than shrink-wrap or among click-through licenses of computer software, contemplating an exchange of value in excess of $1,000,000 during the Company or any of its Subsidiaries, 12 month period ending on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiariesdate hereof;
(vii) all contracts and agreements granting an Encumbrance, other than Permitted Encumbrances, upon any Contract between the Company property or asset of any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange ActPershing Company;
(viii) all contracts and agreements obligating any Contract (other than Contracts granting Pershing Company Options) giving the other party the right to terminate such Contract pay to any Person any money as a result of the execution and delivery of this Agreement or the consummation of the Merger where transactions contemplated herein;
(Aix) such Contract requires all contracts and agreements providing for the acquisition or disposition after the date of this Agreement of any paymentAssets contemplating an exchange of value in excess of $500,000;
(x) all contracts and agreements providing for a power of attorney on behalf of any Pershing Company other than qualified service representative agreements, taken as whole, that is material to the Company stock powers of attorney and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiariessimilar agreements; and
(ixxi) any other contracts all leases and agreements, whether or not made subleases in the ordinary course respect of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”Leased Real Property.
(b) As Each Material Contract: (i) is valid and binding on each of the date Pershing Companies which is a party thereto, and, to the knowledge of the Seller, the counterparties thereto, and is in full force and effect and (ii) upon consummation of the transactions contemplated by this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation to the extent that any consents set forth in Section 3.08 of the Company Disclosure Schedule are not obtained, shall continue in full force and effect without penalty or its Subsidiaries party thereto and, to other adverse consequence. None of the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto Pershing Companies is in breach or violation of, or default under, any Material Contract Contract, except where such breach or default would not, individually or in the aggregate, have a Material Adverse Effect, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledgeknowledge of Seller, none of the action other parties thereto is in material default or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contractmaterial breach.
Appears in 2 contracts
Samples: Transaction Agreement (Credit Suisse Group), Transaction Agreement (Credit Suisse First Boston Usa Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to As of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) (other than any Company Benefit Plan);
(ii) any Contract with any of its directors or officers (other than any Company Benefit Plan);
(iii) any Contract that (A) imposes any material restriction on the right or ability of the Company or any of its Subsidiaries to compete with any other Person or solicit any client or customer or (B) following the Closing will materially restrict the ability of Parent or its Subsidiaries to so compete or solicit;
(iv) any material Contract with a customer that obligates the Company or its Subsidiaries (or following the Closing, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants;
(v) any Contract relating to Indebtedness (other than intercompany Indebtedness owed by the Company or any wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the Company) of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $50,000,000.00, other than the Credit Agreement and the Company Notes and related indentures;
(vi) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(vii) any Contract that provides for the acquisition or disposition, directly or indirectly, of any assets (other than acquisitions or dispositions of sale in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person, and with any outstanding obligations as of the date of this Agreement, in each case with a value in excess of $10,000,000.00;
(viii) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(ix) any Contract with an affiliate or other Person that would be required to be filed by the Company pursuant to disclosed under Item 4 404(a) of the Instructions to Exhibits of Form 20Regulation S-F K promulgated under the Exchange Act;
(iix) any Contract involving (A) with any customer that is one of the Top Customers or (B) with any supplier that is one of the Top Suppliers;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries has purchased, licensed or sold during the twelve months prior to the date hereof, goods or services that involved payment by or receipt to the Company and its Subsidiaries in excess of amounts $40,000,000.00 during such period or that provides for payments in excess of such amount over the remaining term of such agreement (in each case, whether under a single agreement or a series of related agreements);
(xii) any Contract pursuant to which (A) the Company or any of its Subsidiaries grants to any third party any license, release, covenant not to xxx or similar right with respect to any material Intellectual Property owned by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iiiB) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries receives a license, release, covenant not to xxx or similar right with respect to any material Intellectual Property owned by a third party;party (other than generally commercially available software in object code form); and
(ivxiii) any material Contract or any other Contract that limits contains “most favored nation” or similar covenant with respect to pricing terms or requires on-going reporting obligations of the Company and/or its Subsidiaries, in any material respect the ability of each case to which the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in is a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, party and any of their respective Affiliates counterparty is a Governmental Entity (other than or the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material counterparty has represented in writing to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director that it is a prime contractor or executive officer subcontractor to a Governmental Entity). All contracts of the Company or any Person beneficially owning five percent or more of the outstanding Shares required types referred to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ixxiii) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is are referred to herein as a “Company Material ContractContracts.”.
(b) As of Neither the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation nor any Subsidiary of the Company is in breach of or its Subsidiaries party thereto default in any respect under the terms of any Company Material Contract and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any knowledge of its Subsidiaries nor, to the Company’s Knowledge, any as of the date hereof, no other party thereto to any Company Material Contract is in breach or violation of, of or default underin any respect under the terms of any Company Material Contract, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledgeknowledge, prior to the date hereof through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or violation ofdefault or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or default underresult in the loss of any benefit under the terms of any Company Material Contract, any in each case except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each Company Material Contract (i) is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto, and (iiiii) is in full force and effect, subject to the Enforceability Exceptions, in each case except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no disputes pending or, to the Company’s Knowledgeknowledge, threatened with respect to any Company Material Contract, and neither the Company and nor any of its Subsidiaries have not has received any written claim or notice of the intention of any other party to a Company Material Contract to terminate for default, termination convenience or cancellation under otherwise any Company Material Contract, nor to the Company’s knowledge, is any such party threatening to do so, in each case except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Sherwin Williams Co), Merger Agreement (Valspar Corp)
Material Contracts. (a) Except for this Agreement and except for Contracts filed or as exhibits to set forth in Section 3.17 of the Company SEC Reports filed prior to the date of this AgreementDisclosure Schedules, and other than any Company Plans, as of the date hereofAgreement Date, none of the Company or its any of the Company Subsidiaries is a party to or bound by:by (each of the following, together with the engagement letters set forth on Section 3.8 of the Company Disclosure Schedules, a “Company Material Contract”):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 4 601(b)(10) of Regulation S-K promulgated by the Instructions to Exhibits of Form 20-F under the Exchange ActSEC, other than those agreements and arrangements described in Item 601(b)(10)(iii);
(ii) any Contract involving with a related person (as defined in Item 404 of Regulation S-K of the payment or receipt of amounts by Securities Act) that would be required to be disclosed in the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries)SEC Reports but has not been disclosed;
(iii) any material joint venture contractsContract that contains a put, strategic cooperationcall, partnership arrangements right of first refusal or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, or offer for purchase or sale of its Subsidiaries with any third partybusiness, stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material relating to the Company and its Subsidiariesborrowing or lending of Indebtedness in excess of $50,000 (whether incurred, taken as a wholeassumed, guaranteed or secured by any asset);
(v) any material Contract entered into after June 30that is a settlement, 2011 conciliation or not yet consummated, for similar agreement between the acquisition Company or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased any Company Subsidiary and any Governmental Authority pursuant to capital expenditures) which the Company or share capital or other equity interests a Company Subsidiary will be required after the date of another Person;this Agreement to pay any material monetary obligations;
(vi) any Contract between or among the Company or any of its SubsidiariesCompany Subsidiary, on the one hand, and any third Person, on the other hand (A) materially limiting the freedom or right of their respective Affiliates (other than the Company or any Company Subsidiary (or, following the Closing, Parent or any of its Subsidiaries)Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business, on the other hand, that involves payments, taken as whole, that is material (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company and its Subsidiaries;or any Company Subsidiary, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of the Company or any Company Subsidiary to solicit, sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(vii) any Contract between the Company or any Company Subsidiary and a third Person (A) relating to the disposition of any assets or business of the Company and the Company Subsidiaries with a fair market value in excess of $50,000 or (B) relating to the acquisition of any assets or business of, or ownership interests in, any third Person with a fair market value in excess of $50,000, in each case of clauses (A) and (B), whether by merger, sale of stock or assets or otherwise, and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the part of the Company or any Company Subsidiary;
(viii) any Contract between the Company or any Company Subsidiary and any third Person that establishes a joint venture, partnership or limited liability company;
(ix) any Contract that by its Subsidiaries express terms requires the Company or any Company Subsidiary, or any successor to, or acquirer of, the Company or any Company Subsidiary, to make any material payment to another Person as a result of a change of control of the Company or any such Company Subsidiary (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(x) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of the Company or any Company Subsidiary, the pledging of the capital stock or other equity interests of the Company or any Company Subsidiary or the issuance of any guaranty by the Company or any Company Subsidiary;
(xi) any Contract (excluding in each case Contracts entered into in the ordinary course of business consistent with past practice and agreements with employees or independent contractors) pursuant to which (a) both (i) the Company or any Company Subsidiary is granted a license to, including any covenant not to sue under, any material Intellectual Property Right owned by any third party that is necessary for or used by the Company or any Company Subsidiary in their respective businesses as currently conducted, and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the Company or any Company Subsidiary in an amount having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024, or (b) both (i) the Company or any Company Subsidiary grants a third party a license to, including any covenant not to sue under, any material Company Intellectual Property and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the counterparty thereto of cash or other consideration to the Company or any Company Subsidiary in an amount having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024;
(xii) any CBAs;
(xiii) any Contract with any supplier that involved the payment of more than $50,000 in the Company’s last fiscal year;
(xiv) any material Contract with any university or other academic institution, research center, international organization or Governmental Authority having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024, or in any single fiscal year thereafter, other than any sponsored research agreements, clinical trial site agreements, material transfer agreements, sponsorship agreements or grant agreements entered into in the ordinary course of business;
(xv) any Contract that indemnifies any director or executive officer of the Company or any Person beneficially owning five percent Company Subsidiary (other than any indemnification provisions set forth in the certificate of incorporation or more bylaws or comparable governing documents of the outstanding Shares required Company or any Company Subsidiary or Contracts entered into on substantially the same form as the Company’s standard forms previously made available to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;Parent); or
(viiixvi) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract that requires any payment, taken as whole, that is material to capital commitment or capital expenditure (or series of capital expenditures) by the Company and its Subsidiaries or (B) any Company Subsidiary after the value date hereof in an amount in excess of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made $50,000 in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”aggregate.
(b) As Each of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is in full force and effect, and represents a legal, valid and binding obligation of the Company or a Company Subsidiary, enforceable in accordance with its Subsidiaries party thereto terms against the Company or the Company Subsidiary (as the case may be) and, to the Knowledge of the Company’s Knowledge, the any other parties party thereto, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (ii) neither regardless of whether such enforceability is considered in a proceeding in Law or equity). Neither the Company nor any Company Subsidiary is in material breach of its Subsidiaries or default, with or without notice, lapse of time or both, under any Company Material Contract, nor, to the Company’s Knowledge, is any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Company Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (electroCore, Inc.), Merger Agreement (NeuroMetrix, Inc.)
Material Contracts. (a) Except for this Agreement Agreement, any Company Benefit Plan and except for the Contracts filed as exhibits to the publicly available Company SEC Reports filed prior to the date of this AgreementReports, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound byby any Contract:
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Securities Act;
(ii) pursuant to which the Company or any Contract involving Company Subsidiary has any material continuing “earn-out” or other contingent payment obligations arising in connection with the payment acquisition or receipt of amounts disposition by the Company of any business;
(iii) containing any standstill or similar provision remaining in effect pursuant to which the Company or any Company Subsidiary has agreed not to acquire securities or material assets of another Person;
(iv) that (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status that, following the Merger, would apply to Parent or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between including the Company and any of its Subsidiaries);
(iiiv) any that (A) is a material joint venture contractsindenture, strategic cooperationloan or credit Contract, partnership arrangements loan note, mortgage Contract, letter of credit or other agreements outside Contract representing, or any guarantee of, indebtedness of the ordinary course of business involving Company or any Company Subsidiary or (B) is a sharing of profits, losses, costs or liabilities material guarantee by the Company or any Company Subsidiary of its Subsidiaries with the indebtedness of any third partyPerson other than the Company or a wholly owned Subsidiary of the Company;
(ivvi) that grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any Contract Person (other than the Company, a wholly owned Company Subsidiary or a wholly owned Subsidiary of the MLP) with respect to any asset that limits in is material to the Company;
(vii) that was entered into to settle any material respect litigation and which imposes material ongoing obligations on the Company;
(viii) limiting or restricting the ability of the Company or any of its Subsidiaries to declare or any pay dividends or make distributions in respect of their respective employees to compete in any material line of business capital stock, partner interests, membership interests or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeother equity interests;
(vix) that is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any material Contract entered into after June 30partnership, 2011 limited liability company or not yet consummatedjoint venture in which the Company owns, for directly or indirectly, any voting or economic interest of 25% or more, other than with respect to any wholly owned Subsidiary of the Company or wholly owned Subsidiary of the MLP; or
(x) that relates to the acquisition or disposition, directly disposition of any business or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased the purchase and sale of crude oil and products in the ordinary course of business) pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between which the Company or any of its Subsidiaries and has any director liability in excess of $100,000,000 in any transaction or executive officer series of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effectrelated transactions. Each such Contract described in clauses (i) through (ixx) above is referred to herein as a “Material Contract”. Each Material Contract (and each such Contract that would be a Material Contract but for the exception of being having been filed as an exhibit to the a publicly available Company SEC Reports Report) is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of on the Company or and its Subsidiaries party thereto as applicable and, to the Knowledge of the Company’s Knowledge, the each other parties party thereto, (ii) and is in full force and effect, and neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the Knowledge of the Company’s Knowledge, any other party thereto to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract Contract, and no event has occurred that, with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute such a breach breach, violation or violation ofdefault, except for breaches, violations or default underdefaults that would not, any individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract and (iii) has previously been delivered to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractParent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Andeavor), Merger Agreement (Marathon Petroleum Corp)
Material Contracts. (a) Except for this Each Company Management Agreement and except for Contracts filed as exhibits to has been delivered by the Company SEC Reports filed or made available to Parent prior to the date of this Agreement.
(b) There is no event or condition that exists or, after notice or lapse of time or both would exist (excluding the transactions contemplated by this Agreement) that would result in a default by the Company (or its Subsidiaries), and the Company and its Subsidiaries have complied in all material respects with all material obligations, covenants and agreements required to be performed by it, under any and all transfer or financing agreements entered into in connection with the Company’s (i) financing of its VOI Receivables (collectively, the “Receivables Financing Agreements”), other than expenses in connection with the closing of such financing transactions, (ii) Indebtedness secured by its Vacation Intervals held as inventory (“Inventory Financing Agreements”) and (iii) Indebtedness incurred in connection with the acquisition of real property by the Company and its Subsidiaries for the development of vacation projects (“Acquisition Financing Agreements”).
(c) As of the date of this Agreement, except for (w) this Agreement, (x) the Company Benefit Plans, (y) Contracts filed with the SEC prior to the date hereof, or (z) as set forth on Section 3.25(c) of the Company Disclosure Schedule, no Covered Entity is a party to or bound by, as of the date hereof, none of the Company any Contract (whether written or its Subsidiaries is a party to or bound byoral) which is:
(i) any Contract that would be required to be filed by the Company pursuant to a “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving a loan, guarantee of Indebtedness or credit agreement, note, bond, mortgage, indenture, Contract, lease, license or other binding commitment (other than those between the payment Company and its wholly-owned Subsidiaries) or receipt other binding obligation relating to Indebtedness of amounts by the Company or any of its Subsidiaries, or relating pursuant to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by which the Company or any of its Subsidiaries with has mortgaged, pledged or otherwise placed a Lien on any third partymaterial portion of the assets of the Company or its Subsidiaries, in each case, in excess of $250,000;
(iii) a Contract relating to a guarantee by any Covered Entity of Indebtedness of any Person;
(iv) any a Contract that limits requires any Covered Entity to make a loan or capital contribution to or investment in any Person, other than the Silverleaf Club in the ordinary course of business, in excess of $1,000,000;
(v) a Contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any Person or divestiture or disposition by any Covered Entity to any Person of properties, assets, capital stock or other Equity Interests, except for (A) acquisitions and dispositions of Vacation Intervals in the ordinary course of business or (B) relating to Receivables Financing Agreements or Inventory Financing Agreements;
(vi) a Contract that provides for the indemnification of any officer, director, manager or employee by any Covered Entity;
(vii) a Lease;
(viii) a Contract that requires any Covered Entity to make capital expenditures in excess of $250,000 in any fiscal year, or $500,000 in the aggregate;
(ix) a Contract which purports to limit the right of any Covered Entity to engage freely or compete in any line of business or to compete with any Person or operate in any location;
(x) a Contract that creates a partnership, joint venture or similar arrangement with respect to any material respect portion of the ability business of the Company or its Subsidiaries taken as a whole;
(xi) a Contract that relates to the development, ownership, licensing or use of Intellectual Property or Company Systems in excess of $100,000 (other than a shrink wrap or similar license for generally available “off-the-shelf” software);
(xii) a Contract with respect to interest rate or currency hedging activities by the Covered Entity;
(xiii) a settlement or similar Contract with any Governmental Entity or order or consent of a Governmental Entity to which any Covered Entity is subject involving future performance by any Covered Entity which is material to the Company and any of its Subsidiaries taken as a whole;
(xiv) a Contract that contains a “key man” or “key personnel” provision or otherwise restricts, limits or prohibits any of their respective employees to compete Covered Entity, in any material line manner, from hiring, firing or otherwise replacing any directors, officers or employees of business any Covered Entity; and
(xv) an existing agreement, not otherwise required to be disclosed pursuant to clauses (i) through (xv) hereof that (A) requires payments by or with to any Person or entity or Covered Entity in any geographic area or excess of $500,000 during any 12 month period of time in a manner that or (B) is material to the Company and its Subsidiaries, taken as a whole;
whole (v) any material Contract entered into after June 30, 2011 or not yet consummated, for all Contracts of the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiariestype described in this Section 3.25(c), on together with the other handReceivables Financing Agreements, that involves paymentsInventory Financing Agreements and the Acquisition Financing Agreements, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Company Material ContractContracts”).
(bd) As Assuming the validity with respect to and binding effect on the applicable counterparty thereto, each Company Material Contract is valid and binding on the Covered Entity that is a party thereto, as applicable, and is in full force and effect and enforceable against the Covered Entity in accordance with its terms, subject to the Bankruptcy and Equity Exceptions. Each Covered Entity has in all material respects performed all material obligations required to be performed by it to date under each Company Material Contract. To the Company’s Knowledge, each counterparty to each Company Material Contract has in all material respects performed all obligations required to be performed by it under such Company Material Contract prior to the date of this Agreement. The Company does not have Knowledge of, and no Covered Entity has received written notice of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material breach or violation of or material default on the part of a Covered Entity or their counterparties under any such Company Material Contract. Since December 31, 2009, no Covered Entity has received any written notice that any counterparty to a Company Material Contract has sought to terminate or amend the terms of a Company Material Contract. Prior to the date of this Agreement, except as would not have a true and correct copies of all Company Material Adverse Effect, Contracts (ias amended or modified) each Material Contract is a legal, valid and binding obligation of in effect on the date hereof are either publicly filed with the SEC or the Company or its Subsidiaries party thereto and, has made available to the Company’s Knowledge, the other parties thereto, (ii) neither the Parent true and correct copies of such Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractContracts.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Silverleaf Resorts Inc)
Material Contracts. (a) Except for this Agreement as set forth in Section 3.19 of the Company Disclosure Schedule and except for Contracts filed Company Benefit Plans, as exhibits to the Company SEC Reports filed prior to of the date of this Agreement, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange ActSEC);
(ii) any Contract involving between the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any Subsidiary of the Company or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, Affiliate or family member;
(iii) any Contract that imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of them to compete with any other person in any line of business or geographic region, or solicit any customer (or that following the Effective Time will restrict the right or ability of Parent or its Subsidiaries to engage in any line of business or compete in any geographic area);
(iv) any Contract that obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains a “most favored nation” or similar covenant;
(v) any acquisition or divestiture Contract or material licensing agreement that contains material indemnities or any “earnout” or other contingent payment or receipt obligations that are outstanding obligations of amounts by the Company or any of its Subsidiaries, Subsidiaries as of the date of this Agreement;
(vi) any Collective Bargaining Agreement or other works council agreement;
(vii) any agreement relating to material Indebtedness (other than any Indebtedness solely between of the Company and or any of its Subsidiaries)Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(iiiviii) any material joint venture contractsContract that grants any right of first refusal or right of first offer or similar right with respect to any assets, strategic cooperationrights or properties of the Company or its Subsidiaries (A) for, partnership arrangements or other agreements outside that would reasonably be expected to result in, total consideration of more than $10,000,000 or (B) with a fair market value in excess of $10,000,000;
(ix) any Contract that provides for the ordinary course of business involving a sharing of profits, losses, costs acquisition or liabilities disposition by the Company or any of its Subsidiaries with of any third partyassets (other than acquisitions or dispositions of assets in the ordinary course of business) or a business (whether by merger, sale of stock or otherwise) that contain ongoing obligations that are material to the Company and the Company’s Subsidiaries, taken as a whole;
(ivx) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(xi) any Contract that limits in any material respect expressly limiting or restricting the ability of the Company or any of its Subsidiaries (A) to make distributions or any declare or pay dividends in respect of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiariescapital stock, taken as a whole;
(v) any material Contract entered into after June 30partnership interests, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital membership interests or other equity interests of another Person;
interests, as the case may be, (viB) any Contract between or among to make loans to the Company or any of its Subsidiaries, or (C) to grant liens on the one hand, and any property of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(viixii) any Contract between that obligates the Company or any of its Subsidiaries and to make any director loans, advances or executive officer of the Company capital contributions to, or investments in, any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where person, except for (A) such Contract requires any paymentloans or advances for indemnification, taken as wholeattorneys’ fees, that is material to or travel and other business expenses in the ordinary course of business, (B) extended payment terms for customers in the ordinary course of business, (C) prepayment of Taxes for repatriated employees of the Company and its Subsidiaries or (D) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of $25,000,000 individually;
(xiii) any settlement agreement entered into since July 1, 2013 (A) with a Governmental Entity, (B) the value of the outstanding receivables due to that requires the Company and its Subsidiaries under such Contract, taken as whole, that is material to pay more than $25,000,000 after the date of this Agreement or (C) imposes any restrictions on the business of the Company and or its Subsidiaries; and;
(ixxiv) any other contracts and agreementsContract with a Top Customer, whether Top Distributor or not made Top Supplier (excluding purchase orders issued in the ordinary course of business, which are material to );
(xv) any Contract that involved the payment of more than $10,000,000 by the Company and its SubsidiariesSubsidiaries in fiscal year 2016 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, taken as distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvi) any Contract that involved the receipt of more than $10,000,000 by the Company and its Subsidiaries in fiscal year 2016 or that is expected to result in the receipt of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvii) any Contract relating to the supply of any item used by the Company or a wholeSubsidiary of the Company that is a sole source of supply of any raw material, component or service and under which the conduct Company paid more than $5,000,000 to the relevant supplier in fiscal year 2016 or that is expected to result in the payment of their respective businesses, such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding purchase orders issued in the ordinary course of business);
(xviii) any material Government Contract that has not been closed out; or
(xix) any contract relating to the creation of any Lien (other than Permitted Liens) with respect to any material asset of the Company or any Subsidiary of the absence Company. All contracts of which would have a Company Material Adverse Effect. Each such Contract described the types referred to in clauses (i) through (ixxix) above and each such Contract that would be a Material Contract but for the exception (whether or not set forth on Section 3.19 of being filed as an exhibit to the Company SEC Reports is Disclosure Schedule), are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a “complete and correct copy of each Company Material Contract”Contract as in effect on the date of this Agreement.
(b) As of Neither the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation nor any Subsidiary of the Company is in breach of or its Subsidiaries party thereto default under the terms of any Company Material Contract and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any knowledge of its Subsidiaries nor, to the Company’s Knowledge, any no other party thereto to any Company Material Contract is in breach or violation of, of or default under, under the terms of any Company Material Contract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge of the Company’s Knowledge, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach or violation of, of or default underunder the terms of any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto (except in each case as enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally, and that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and is in full force and effect, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and (iii) to as of the Company’s Knowledgedate of this Agreement, neither the Company and nor any of its Subsidiaries have not has received any written claim or notice of the intention of any other party to any Company Material Contract to terminate for default, termination convenience or cancellation under otherwise any Company Material Contract prior to its stated expiration date, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material ContractAdverse Effect.
(c) As of the date of this Agreement, no Top Supplier, Top Customer or Top Distributor has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given notice to the Company or any Subsidiary of the Company of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Linear Technology Corp /Ca/), Merger Agreement (Analog Devices Inc)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to set forth in Section 3.17 of the Company SEC Reports filed prior to the date of this AgreementDisclosure Schedule, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:
by any Contract that (i) any Contract that would be required to be filed is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
SEC), (ii) any Contract involving would, after giving effect to the payment Merger, limit or receipt of amounts by restrict the Company or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between the Company and any of its Subsidiaries);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company Surviving Corporation or any of its Subsidiaries with or any third party;
(iv) any Contract that limits successor thereto, from engaging or competing in any material line of business or in any geographic area that it currently engages in or that contains exclusivity or non-solicitation provisions with respect to customers, (iii) limits or otherwise restricts the ability of the Company or any of its Subsidiaries to pay dividends or any of their respective employees make distributions to compete in any material line of business its stockholders or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(viv) any material Contract entered into after June 30, 2011 or not yet consummated, provides for the acquisition operation or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) management of any operating assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or its Subsidiaries by any of its Subsidiaries, on the one hand, and any of their respective Affiliates (person other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any . Each Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of type described in this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreementsSection 3.17, whether or not made in the ordinary course set forth on Section 3.17) of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports Disclosure Schedule is referred to herein as a “Company Material Contract”.
(b) As of the date of this Agreement, except as would not have a ” Each Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries Subsidiary party thereto enforceable against the Company or its Subsidiary party thereto and, to the knowledge of the Company’s Knowledge, the each other parties party thereto, in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) neither equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) and, is in full force and effect, and each of the Company nor and each of its Subsidiaries which is a party thereto has performed in all material respects all obligations required to be performed by it to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation has knowledge of, or has received written notice of, any violation of or default under (or any condition which with the passage of time or the giving of written notice would cause such a violation of or default under, ) any Company Material Contract and no event has occurred to which it is a party or not occurred through the Company’s by which it or any of its Subsidiaries’ action properties or inaction assets is bound, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or, after giving effect to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material Contract.the
Appears in 2 contracts
Samples: Merger Agreement (Vertro, Inc.), Merger Agreement (Vertro, Inc.)
Material Contracts. (a) Except for this Agreement and except for the Contracts filed as exhibits to the publicly-available Company SEC Reports filed prior to the date of this AgreementReports, as of the date hereof, none of neither the Company or nor any of its Subsidiaries is a party to or bound by:by any Contract
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 4 601(b)(10) of the Instructions to Exhibits of Form 20Regulation S-F K under the Exchange Securities Act;
(ii) pursuant to which the Company or any Contract involving Company Subsidiary has any material continuing “earn-out” or other contingent payment obligations arising in connection with the payment acquisition or receipt of amounts disposition by the Company of any business;
(iii) containing any standstill or similar provision remaining in effect pursuant to which the Company or any Company Subsidiary has agreed not to acquire securities or material assets of another Person;
(iv) that (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status that, following the Merger, would apply to Parent or any of its Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between including the Company and any of its Subsidiaries);
(iiiv) any that (A) is a material joint venture contractsindenture, strategic cooperationloan or credit Contract, partnership arrangements loan note, mortgage Contract, letter of credit or other agreements outside Contract representing, or any guarantee of, indebtedness of the ordinary course of business involving Company or any Company Subsidiary or (B) is a sharing of profits, losses, costs or liabilities material guarantee by the Company or any Company Subsidiary of its Subsidiaries with the indebtedness of any third partyPerson other than the Company or a wholly-owned Subsidiary of the Company;
(ivvi) that grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any Contract Person (other than the Company or a wholly-owned Company Subsidiary) with respect to any asset that limits in is material to the Company;
(vii) that was entered into to settle any material respect litigation and which imposes material ongoing obligations on the Company; or
(viii) limiting or restricting the ability of the Company or any of its Subsidiaries to declare or any pay dividends or make distributions in respect of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiariescapital stock, taken as a whole;
(v) any material Contract entered into after June 30partner interests, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital membership interests or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are material to the Company and its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effectinterests. Each such Contract described in clauses (i) through (ix) above is referred to herein as a “Material Contract”. Each Material Contract (and each such Contract that would be a Material Contract but for the exception of being having been filed as an exhibit to the a publicly-available Company SEC Reports Report) is referred to herein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation on the applicable of the Company or and its Subsidiaries party thereto and, to the Knowledge of the Company’s Knowledge, the each other parties party thereto, (ii) and is in full force and effect, and neither the Company nor any of its Subsidiaries Subsidiaries, nor, to the Knowledge of the Company’s Knowledge, any other party thereto to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract Contract, and no event has occurred that, with or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orwithout notice, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute such a breach breach, violation or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination except for breaches, violations or cancellation under any such defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Tesoro Corp /New/), Merger Agreement (Western Refining, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to Section 5.12(a) of the Company SEC Reports filed prior to the date REIT II Disclosure Letter sets forth a list of this Agreement, each Contract (other than a Benefit Plan) in effect as of the date hereof, none of the Company hereof to which REIT II or its Subsidiaries any REIT II Subsidiary is a party to or by which any of its properties or assets are bound bythat:
(i) any Contract that would be is required to be filed by the Company as an exhibit to REIT II's Annual Report on Form 10-K pursuant to Item 4 601(b)(2), (4), (9) or (10) of the Instructions to Exhibits of Form 20Regulation S-F K promulgated under the Exchange Securities Act;
(ii) any Contract involving the payment or receipt of amounts by the Company obligates REIT II or any of its Subsidiaries, or relating REIT II Subsidiary to material Indebtedness make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $200,000 and is not cancelable within ninety (90) days without material penalty to REIT II or any Indebtedness solely between the Company and any of its Subsidiaries)REIT II Subsidiary;
(iii) contains any material joint venture contractsnon-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of REIT II or any REIT II Subsidiary, strategic cooperationincluding upon consummation of the transactions contemplated by this Agreement, partnership arrangements or that otherwise restricts the lines of business conducted by REIT II or any REIT II Subsidiary or the geographic area in which REIT II or any REIT II Subsidiary may conduct business;
(iv) is a Contract that obligates REIT II or any REIT II Subsidiary to indemnify any past or present directors, officers, or employees of REIT II or any REIT II Subsidiary pursuant to which REIT II or any REIT II Subsidiary is the indemnitor;
(v) constitutes (A) an Indebtedness obligation of REIT II or any REIT II Subsidiary with a principal amount as of the date hereof greater than $200,000 or (B) a Contract (including any so called take-or-pay or keepwell agreements) under which (1) any Person including REIT II or a REIT II Subsidiary, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of REIT II or REIT II Subsidiary or (2) REIT II or a REIT II Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including REIT II or another REIT II Subsidiary (in each case other agreements outside than endorsements for the purpose of collection in the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company business);
(vi) requires REIT II or any REIT II Subsidiary to dispose of its Subsidiaries or acquire assets or properties that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $200,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(vii) constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a swap or other hedging transaction of any type;
(viii) constitutes a loan to any Person (other than a Wholly Owned REIT II Subsidiary or the REIT II Operating Partnership) by REIT II or any REIT II Subsidiary in an amount in excess of $200,000;
(ix) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of REIT II or any REIT II Subsidiary with a third party;
(ivx) any Contract that limits in any material respect prohibits the ability pledging of the Company capital stock of REIT II or any REIT II Subsidiary or prohibits the issuance of its Subsidiaries or guarantees by any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a wholeREIT II Subsidiary;
(vxi) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Personis with a Governmental Authority;
(vixii) any Contract between has continuing "earn-out" or among the Company or any of its Subsidiariesother similar contingent purchase price payment obligations, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, in each case that involves could result in payments, taken as wholeindividually or in the aggregate, that is material to the Company and its Subsidiariesin excess of $200,000;
(viixiii) any is an employment Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Actconsulting Contract;
(viiixiv) is a collective bargaining agreement or other Contract with any Contract labor organization, union or association;
(other than Contracts granting Company Optionsxv) giving the other is a management agreement pursuant to which any third party the right to terminate such Contract as a result of this Agreement manages or the consummation operates any of the Merger where REIT II Properties on behalf of REIT II or any REIT II Subsidiary (the "REIT II Management Agreements");
(xvi) is a ground lease under which REIT II or any REIT II Subsidiary holds a leasehold interest in the REIT II Properties or any portion thereof; or
(xvii) is both (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any other contracts and agreements, whether or not made in the ordinary course of business, which are business consistent with past practice and (B) material to REIT II and the Company and its REIT II Subsidiaries, taken as a whole, .
(b) Each Contract in any of the categories set forth in Section 5.12(a) to which REIT II or any REIT II Subsidiary is a party or by which it is bound as of the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports date hereof is referred to herein as a “"REIT II Material Contract”."
(bc) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) each Each REIT II Material Contract is a legal, valid valid, binding and binding obligation of enforceable on the Company or its Subsidiaries REIT II Parties and each other REIT II Subsidiary that is a party thereto and, to the Company’s KnowledgeKnowledge of REIT II, the each other parties party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors' rights generally and by general principles of equity (ii) neither regardless of whether enforceability is considered in a proceeding in equity or at Law). The REIT II Parties and each other REIT II Subsidiary has performed all obligations required to be performed by it prior to the Company date hereof under each REIT II Material Contract and, to the Knowledge of REIT II, each other party thereto has performed all obligations required to be performed by it under such REIT II Material Contract prior to the date hereof. Neither REIT II nor any of its Subsidiaries REIT II Subsidiary, nor, to the Company’s KnowledgeKnowledge of REIT II, any other party thereto thereto, is in breach or violation of, or default under, any REIT II Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orthat, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both both, would constitute a violation, breach or default, under any REIT II Material Contract, except where in each case such breach, violation ofor default, individually or in the aggregate, would not reasonably be expected to have a REIT II Material Adverse Effect. Neither REIT II nor any REIT II Subsidiary has received notice of any violation or default under, or owes any termination, cancellation or other similar fees or any liquidated damages with respect to any REIT II Material Contract Contract, except for violations or defaults, or fees or damages, that, individually or in the aggregate, would not reasonably be expected to have a REIT II Material Adverse Effect. Since December 31, 2016 and (iii) to as of the Company’s Knowledgedate hereof, the Company and its Subsidiaries have not neither REIT II nor any REIT II Subsidiary has received any written claim or notice of defaultthe intention of any party to cancel, termination terminate, materially change the scope of rights under or cancellation under fail to renew any such REIT II Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (MVP REIT, Inc.), Merger Agreement (MVP REIT II, Inc.)
Material Contracts. (a) Except for this Agreement For all purposes of and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of under this Agreement, as a “Material Contract” shall mean any of the date hereoffollowing, none of excluding the Company or its Subsidiaries is a party to or bound byAccel Agreement:
(i) any Contract that would be required to be filed by the Company pursuant to “material contract” (as such term is defined in Item 4 601(b)(10) of Regulation S-K of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its SubsidiariesSEC, or relating to material Indebtedness (other than any Indebtedness solely between the Company those agreements and any of its Subsidiariesarrangements described in Item 601(b)(10)(iii);
(iii) any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any Contract that limits in any material respect the ability of the Company or any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(vii) any employment or consulting Contract (in each case, under which the Company has continuing obligations as of the date hereof) with any executive officer or other employee of the Company or its Subsidiaries or member of the Company Board providing for an annual base salary in excess of $175,000;
(iii) any material Contract entered into after June 30with any of the twenty (20) largest customers of the Company and its Subsidiaries, 2011 or not yet consummated, for determined on the acquisition or disposition, directly or indirectly (including basis of revenues received by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its SubsidiariesSubsidiaries for the fiscal year ended December 31, on 2008 (the one hand, and “Material Customer Agreements”);
(iv) any Contract containing any covenant (A) limiting the right of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, Subsidiaries to engage in any material line of business or to compete with any Person in any line of business that is or could reasonably be expected to be material to the Company, or (B) prohibiting the Company or any of its Subsidiaries from engaging in business with any Person or levying a fine, charge or other payment for doing so, in each case other than any such Contracts that (x) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less or (y) are not, individually or in the aggregate, material to the Company and its Subsidiaries;
(viiv) any Contract between (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries and any director after the date of this Agreement of a material amount of assets other than in the ordinary course of business, or executive officer of (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other Person beneficially owning five percent or more other business enterprise other than the Company’s Subsidiaries;
(vi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $500,000, other than (A) accounts receivables and payables, and (B) loans to direct or indirect wholly-owned Subsidiaries, in each case in the ordinary course of business consistent with past practice;
(vii) any Lease or Sublease set forth in Sections 3.15(b) and 3.15(c) of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange ActCompany Disclosure Letter;
(viii) any Contract providing for the payment, increase or vesting of any material benefits or compensation in connection with the transactions contemplated hereby (other than Contracts granting evidencing Company Options) giving the other party the right to terminate such Contract as a result of this Agreement Options or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; andStock-Based Awards);
(ix) any Contract providing for severance in excess of $75,000 (other contracts and agreementsthan those pursuant to which severance is required by applicable Law);
(x) any Contract relating to or evidencing Indebtedness of the Company or any of its Subsidiaries, in the case of each clause in the definition thereof, greater than $100,000 (whether or not made in the ordinary course contingent);
(xi) any Contract providing for indemnification of businessany officer, which are material to director, manager or employee by the Company and or its Subsidiaries, taken as a whole, or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses ;
(ixii) through (ix) above and each such any Contract that would involves any material joint venture, partnership or similar arrangement; and
(xiii) any Company Intellectual Property Agreements required to be a Material Contract but for the exception listed pursuant to Section 3.16(c) of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”Disclosure Letter.
(b) As Section 3.13(b) of the date Company Disclosure Letter contains a complete and accurate list of this Agreement, except as would not have all Material Contracts to or by which the Company or any of its Subsidiaries is a Company Material Adverse Effect, party or is bound.
(ic) each Each Material Contract is a legal, valid and binding obligation on the Company (and/or each such Subsidiary of the Company or its Subsidiaries party thereto andthereto) and is in full force and effect, to the Company’s Knowledge, the other parties thereto, (ii) and neither the Company nor any of its Subsidiaries party thereto, nor, to the Knowledge of the Company’s Knowledge, any other party thereto thereto, is in breach or violation of, or default under, any such Material Contract Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute such a breach or violation ofdefault, or default underotherwise modify any rights or obligations thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, except for such failures to be in full force and effect and such breaches and defaults that would not have a Company Material Contract and (iii) to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Sumtotal Systems Inc), Merger Agreement (Vista Equity Partners Fund III LP)
