Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto): (i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries; (ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000; (iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000; (iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts); (v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing; (vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement; (vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000; (viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person; (ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule; (x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property; (xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation; (xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and (xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand; (xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment); (xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year; (xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and (xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice. (i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 8 contracts
Samples: Merger Agreement (Sagrera Ricardo A.), Merger Agreement (Lewis & Clark Ventures I, LP), Merger Agreement (RiverRoad Capital Partners, LLC)
Material Contracts. (a) Except for this Agreement, Section 3.13(a) 5.19 of the Company WTW Disclosure Schedule Letter contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date of this Agreement, the Company of each Contract described below in this Section 5.19(a) under which WTW or its Subsidiaries is a party any WTW Subsidiary has any current or by which they are boundfuture rights, other than a Company Benefit Planresponsibilities, and that are not expired obligations or have not been terminated and not including any Contracts pursuant liabilities (in each case, whether contingent or otherwise) or to which the Company has with no material outstanding any of their respective properties or executory obligations or Liabilities (such Contracts assets is subject, in each case as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, date of this Agreement (all Contracts of the type described in this Section 5.19(a) being referred to herein as the “WTW Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any partnership, joint venture, strategic alliance or collaboration Contract relating which is material to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or WTW and its Subsidiaries, taken as a whole;
(ii) any Contract under which that (A) purports to materially limit (1) the Company or material lines of business of WTW and its Subsidiaries is lessee (or, after the Effective Time, Aon and its Subsidiaries) or (2) the geographic area in which any of them may so engage in such business or holds (B) would require the disposition of any material assets or operatesmaterial line of business of WTW and its Subsidiaries (or, in each caseafter the Effective Time, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which Aon and its Subsidiaries taken as a whole) as a result of the aggregate annual rental payments do not exceed $500,000consummation of the Transactions;
(iii) any each acquisition or divestiture Contract under which or licensing agreement that contains representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the Company receipt or its Subsidiaries is lessor making of or permits any third party to hold or operate, future payments in each case, any tangible property excess of $50 million in the twelve (other than real property), owned or controlled by 12) month period following the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000date hereof;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected Contract relating to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company outstanding Indebtedness of WTW or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent for borrowed money or any of its Affiliates after the Closingfinancial guaranty thereof (whether incurred, (Bassumed, guaranteed or secured by any asset) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or 50 million other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person than (A) pursuant to which the Company Contracts solely among WTW and any wholly-owned WTW Subsidiary or its Subsidiaries (or Parent a guarantee by WTW or any WTW Subsidiary of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementa WTW Subsidiary, (B) financial guarantees entered into in the ordinary course of business consistent with a Governmental Authority past practice not exceeding $50 million, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon), and (C) that imposes any material, non-monetary obligations on Contracts relating to Indebtedness explicitly included in the Company or its Subsidiaries (or Parent or any of its Affiliates after consolidated financial statements in the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handWTW SEC Documents;
(xivv) any each Contract with the Company or its Subsidiaries(other than a WTW Benefit Plan) between WTW, on the one hand, and any officer, director, manager, stockholder, member director or Affiliate (other than a wholly-owned WTW Subsidiary) of an Affiliate of the Company or its Subsidiaries WTW or any of their respective Affiliates “associates” or “immediate family” members (excluding employee confidentiality as such terms are defined in Rule 12b-2 and invention assignment agreementsRule 16a-1 of the Exchange Act), equity on the other hand, including any Contract (other than a WTW Benefit Plan) pursuant to which WTW has an obligation to indemnify such officer, director, Affiliate or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)family member;
(xvvi) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $500,000 per year25 million annually or in the aggregate) under which WTW or any WTW Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights of a third party, which Contract is material to WTW and WTW Subsidiaries, taken as a whole;
(xvivii) any employment Contract (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $25 million annually or consulting in the aggregate) under which WTW or any WTW Subsidiary has granted to a third party any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights (including any development thereof), which Contract with severanceis material to WTW and WTW Subsidiaries, change in controltaken as a whole;
(viii) any shareholders, retention investors rights, registration rights or similar arrangements, that will result in any obligation (absolute agreement or contingent) arrangement of the Company WTW or any of its Subsidiaries Significant Subsidiaries;
(ix) any Contract that relates to make any payment swap, forward, futures, or incur other similar derivative transaction for hedging purposes with a notional value in excess of $100 million;
(x) any Liability as a result material collective bargaining agreement or other material Contract with any labor union;
(xi) any Contract involving the settlement of any action or threatened action (or series of related actions) which will (A) involve payments after the consummation date hereof of consideration in excess of $25 million or (B) impose material monitoring or reporting obligations to any other Person outside the transactions contemplated by this Agreement, termination ordinary course of employment or bothbusiness; and
(xviixii) any Contract not otherwise described in any other Contract the performance subsection of which requires either this Section 5.19(a) that would be required to be filed by WTW as a “material contract” (Aas such term is defined in Item 601(b)(10) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life Regulation S-K of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeSEC).
(ib) Each Neither WTW nor any WTW Subsidiary is in breach of or default under the terms of any WTW Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect. To the knowledge of WTW, as of the date hereof, no other party to any WTW Material Contract is in breach of or default under the terms of any WTW Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect, each WTW Material Contract is a valid and binding on the Company obligation of WTW or its Subsidiaries, as applicableWTW Subsidiary which is party thereto and, to the Company’s Knowledgeknowledge of WTW, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 5 contracts
Samples: Business Combination Agreement, Business Combination Agreement (Willis Towers Watson PLC), Business Combination Agreement (Aon PLC)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date For purposes of this Agreement, a “Material Contract” shall mean the Company Intellectual Property Agreements and all of the following Contracts to and by which the Company or any of its Subsidiaries is a party or by which they are is bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any employment, independent contractor or consulting Contract relating to Indebtedness for borrowed money (in each case, under which the Company has continuing obligations as of the date hereof) with any employee, independent contractor or director of the Company or its Subsidiaries or member of the Company Board other than Contracts with contractors or consultants that can be terminated without material penalty upon notice of ninety (90) days or less or offer letters and employment agreements entered into in the ordinary course of business consistent with past practice with employees, independent contractors or directors who are not officers and are terminable “at will” without the Company or its Subsidiaries incurring any material liability or obligation;
(ii) any Contract or plan, including the Company Stock Plans or any stock purchase 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 transactions contemplated hereby 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, except for benefits or value attributable solely to the placing increase in the value of the Company Common Stock as a result of any of the transactions contemplated by this Agreement;
(iii) any Contract providing for indemnification or any guaranty by or on the part of the Company or any its Subsidiaries (in each case, under which the Company or its Subsidiaries has continuing obligations as of the date hereof), other than (A) any guaranty by the Company of any of its Subsidiary’s obligations or (B) any Contract entered into in connection with the development, distribution, resale, sale, license or provision of any services or hardware or software products of the Company or any of its Subsidiaries or in any inbound license or services agreement, in each case, entered into in the ordinary course of business;
(iv) any Contract containing any covenant (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material technology owned by the Company or any of its Subsidiaries or Company Intellectual Property or to compete with any Person in any line of business, prohibiting the Company or any of its Subsidiaries (or, after the Closing Date, Parent or the Surviving Corporation or any of their respective Subsidiaries) from engaging in business with any Person or levying a fine, charge or other payment for doing so or otherwise prohibiting or limiting the right of the Company or its Subsidiaries to distribute or offer any products or services or to purchase or otherwise obtain any software components, parts or subassemblies; or (B) granting any exclusive rights to a third party, 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, taken as a whole;
(v) any Contract (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a Lien (material amount of assets other than a Permitted Lienin the ordinary course of business or (B) on pursuant to which the Company or any of its Subsidiaries will acquire any material assets ownership interest in any other Person or properties other business enterprise other than the Company’s Subsidiaries;
(vi) Contracts, if any, for (A) the top ten (10) distributors for each of the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), (B) the top fifteen (15) reseller for each of the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), and (C) the top ten (10) direct customers for the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), in each case excluding quotes and purchase orders with such distributors, resellers, and customers;
(vii) any Contract providing for the development by any third party of any material Company Intellectual Property for or on behalf of the Company or its Subsidiaries, and which may not be canceled without material liability to the Company or its Subsidiaries upon notice of one hundred eighty (180) days or less;
(viii) containing any obligation to provide support or maintenance for the Company Products outside of the ordinary course of business consistent with past practice, other than those Contracts obligations that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days notice without material liability or financial obligation to the Company or its Subsidiaries;
(iiix) any Contract under which authorizing another Person to provide support or maintenance to the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based Company’s customers on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life behalf of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limitCompany, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the ClosingSubsidiaries, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company Contracts with distributors or a Subsidiary) resellers that are obligated to provide such support or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulemaintenance;
(x) any Contract with any Person third party to manufacture or reproduce any Company Products or any Contract to sell or distribute any Company Products, other than Contracts with customers, distributors, resellers or sales representatives entered into in the ordinary course of business;
(xi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than accounts receivables and payables in the ordinary course of business consistent with past practice;
(xii) any settlement Contract, other than (A) pursuant to which releases immaterial in nature or amount entered into with former employees or independent contractors of the Company or its Subsidiaries (or Parent or any in the ordinary course of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events business or (B) under settlement agreements for cash only (which has been paid or is reserved for on the Company or its Subsidiaries Balance Sheet) and does not exceed $200,000 as to such settlement;
(xiii) any Contract which grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license offer or any other similar rights right with respect to any material Company Product assets, rights or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business properties of the Company or any of its Subsidiaries or for Subsidiaries;
(xiv) any Contract which limits the acquisition payment of dividends by the Company or any of its Subsidiaries Subsidiaries;
(xv) any Contract which relates to a joint venture, partnership, limited liability company agreement, revenue sharing or other similar agreement requiring the sharing of the assets revenues or business of joint venture;
(xvi) any Contract which relates to an acquisition, divestiture, merger or similar transaction and which contains any material obligations (including indemnification, “earn-out” or other Person contingent obligations) that are still in effect;
(other than acquisitions xvii) any Collective Bargaining Agreement or dispositions made in the Ordinary Course of Business), or under similar Contract;
(xviii) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any continuing obligation with respect product or service to an “earn-out,” contingent purchase price any third party on a most favored nation (MFN) basis or other contingent or deferred payment obligationsimilar pricing basis;
(xiixix) any settlement, conciliation or similar Contract (A) requiring monetary payments by entered into directly between the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiariesa United States federal Governmental Authority, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of pursuant to which the Company or any of its Subsidiaries provided or provides any Company Products to make such United States federal Governmental Authority, other than sales of Company Products to United States federal Governmental Authorities pursuant to purchase orders without any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andfurther written agreement;
(xviixx) any other Contract the performance of which requires either (A) annual payments to or from that provides for payment obligations by the Company or any of its Subsidiaries in excess of $300,000 1,000,000 or (B) aggregate payments to or from the Company or its Subsidiaries more in excess of $1,500,000 over the life of the agreement and, in each case, any individual fiscal year that is not terminable by the applicable Company or its Subsidiaries upon notice of ninety (90) days or less without material liability to the Company or its Subsidiaries without penalty upon less than thirty Subsidiary and is not disclosed pursuant to clauses (30i) days’ prior written noticethrough (xxi) above; and
(xxi) any other Contract not listed in Section 4.13(a)(i)-(xx) above that would be 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 and its Subsidiaries.
(ib) Section 4.13 of the Company Disclosure Schedule contains a complete and accurate list, as of the date hereof, of all Material Contracts.
(c) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to (and/or each such Subsidiary of the Company’s Knowledge, the counterparties Company party thereto, ) and is in full force and effect effect, and enforceable in accordance with its terms against neither the Company or nor any of its Subsidiaries andparty thereto, nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any such Material Contract Contract, and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, any Material Contract thereunder by the Company or any of its Subsidiaries Subsidiaries, or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase ordersparty thereto, invoicesexcept for such failures to be in full force and effect and such breaches and defaults that would not, and similar confirmatory individually or administrative documents that are ancillary to in the main contractual relationship between aggregate, have a Material Adverse Effect on the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Company.
Appears in 4 contracts
Samples: Merger Agreement (Data Domain, Inc.), Merger Agreement (Emc Corp), Merger Agreement (Emc Corp)
Material Contracts. (a) Section 3.13(a) of Except for the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be agreements set forth on Section 3.13(a) of the Company Disclosure ScheduleSchedule 5.21 (collectively, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
Closing Date there are no (i) employment agreements covering the management of Borrower, (ii) collective bargaining agreements or other labor agreements covering any Contract relating employees of Borrower, (iii) agreements for managerial, consulting or similar services to Indebtedness for borrowed money which Borrower is a party or by which it is bound, (iv) agreements regarding Borrower, its assets or operations or any investment therein to which any of the Company its equity holders is a party, (v) patent licenses, trademark licenses, copyright licenses or its Subsidiaries other lease or license agreements to the placing of which Borrower is a Lien party, either as lessor or lessee, or as licensor or licensee (other than widely-available software subject to “shrink-wrap” or “click-through” software licenses), (vi) distribution, marketing or supply agreements to which Borrower is a Permitted Lienparty, (vii) on customer agreements to which Borrower is a party (in each case with respect to any material assets or properties agreement of the Company type described in the preceding clauses (i), (iii), (iv), (v), (vi) and (vii) requiring payment of more than $250,000 in any year), (viii) partnership agreements pursuant to which Borrower is a partner, limited liability company agreements pursuant to which Borrower is a member or its Subsidiaries;
manager, or joint venture agreements to which Borrower is a party, (iiix) real estate leases, or (x) any Contract under other agreements or instruments to which the Company or its Subsidiaries Borrower is lessee of or holds or operatesa party, in each casecase the breach, any tangible property (other than real property)nonperformance or cancellation of which, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrencehave a Material Adverse Effect. Schedule 5.21 sets forth, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property each real estate lease agreement to which Borrower is a party as of the Closing Date, the address of the subject property. The consummation of the transactions contemplated by the Loan Documents will not give rise to a right of termination in favor of any party to any Material Contract (other than any Non-Scheduled Contracts);
(vBorrower) any Contract that (A) limits or purports which would reasonably be expected to limithave, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, either individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Adverse Effect.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 4 contracts
Samples: Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.)
Material Contracts. (a) Section 3.13(a3.14(a) of the Company Seller Disclosure Schedule contains a listing lists the following types of all Contracts described in clauses (i) through (xiii) below contracts and agreements to whichwhich the Seller, as of the date of this Agreementany Company, the any Subsidiary or any Group Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant relate primarily to which the Company has with no material outstanding or executory obligations or Liabilities Business (such Contracts contracts and agreements as are required to be set forth on in Section 3.13(a3.14(a) of the Seller Disclosure Schedule and the Company Disclosure Schedule, IP Agreements being the “Material Seller Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract each “material contract” (as such term is used in Form 20-F of the SEC) relating to Indebtedness for borrowed money of the Companies, the Subsidiaries, the Group Companies, or the Business, or any such contract to which any Company, any Subsidiary or any Group Company or its Subsidiaries or to the placing of is a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesparty;
(ii) all contracts and agreements pursuant to which control is exercised by the Seller, the Companies or the Subsidiaries over any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Group Company;
(iii) all contracts and agreements between any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each caseCompany, any tangible property Subsidiary or any Group Company, on the one hand, and the Seller or any of its Affiliates (other than real propertyany Company, any Subsidiary or any Group Company), owned or controlled by on the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000other hand;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractall contracts and agreements that limit, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports purport to limit, in the ability of any material respectCompany, the freedom of the any Subsidiary or any Group Company to compete or its Subsidiaries to engage or compete in any line of business or with any Person person or entity or in any geographic area or that would so limit during any period of time;
(v) all contracts and agreements providing for an interest rate, currency or purport commodity swap, derivative, hedge, forward purchase or sale or other transaction similar in nature or effect to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingoff-balance sheet financing;
(vi) any Contract requiring any all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount payments in excess of (A) $300,000 annually or (B) $1,000,000 over 500,000 other than contracts and agreements for which the life of the agreementpayments to be made thereunder are currently accounted for in Seller’s capital budget;
(vii) all joint venture contracts, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company, any Contract requiring the Subsidiary or any Group Company or its Subsidiaries to guarantee the Liabilities of with any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000third party;
(viii) all contracts and agreements for pending acquisitions of capital stock or assets of another Person (whether by merger or stock or asset purchase);
(ix) all contracts and agreements (including any Contract so-called take or pay or keep well agreements) under which the any Company, any Subsidiary, or any Group Company or its Subsidiaries has, has directly or indirectly, made indirectly guaranteed or otherwise agreed to make be responsible for Indebtedness, Liabilities or obligations of another Person;
(x) any loancontract or agreement (other than contracts of the type described in subclauses (i) through (ix) above) that involves aggregate future payments by or to any Company, advanceany Subsidiary, or assignment any Group Company in excess of payment $1,000,000 per annum, other than a purchase or sales order or other contract entered into in the ordinary course of business consistent with past practice; and
(xi) all other contracts and agreements that relate primarily to any Person outside the Business and are material to the Companies, the Subsidiaries and the Group Companies, taken as a whole, or the absence of the Ordinary Course of Business orwhich could reasonably be expected, individually or in the aggregate, to have a Seller Material Adverse Effect.
(b) Except as could not reasonably be expected, individually or in an amount in excess of $200,000 or made any capital contribution tothe aggregate, or other investment into have a Seller Material Adverse Effect:
(i) each Material Seller Contract is a legal, any Personvalid and binding agreement;
(ixii) any Contract required to be disclosed on Section 3.19 none of the Company Disclosure ScheduleSeller, the Companies, the Subsidiaries or the Group Companies has received any written claim of material default under any Material Seller Contract and none of the Seller, the Companies, the Subsidiaries or the Group Companies is in material breach or violation of, or material default under, any Material Seller Contract;
(xiii) any Contract with any Person (A) pursuant to which the Company Seller’s Knowledge, no other party is in material breach or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)violation of, or under which the Company or its Subsidiaries has material default under, any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Material Seller Contract; and
(xiiiiv) each collective bargaining agreement or other Contract with neither the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees execution of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of this Agreement nor the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract Agreement and the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or Ancillary Agreements shall constitute a default under, give rise to modification, acceleration, or cancellation rights under, or otherwise adversely affect any of the rights of the Companies, the Subsidiaries or the Group Companies under any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoSeller Contract. The Company Seller has furnished or made available to Parent the Purchaser true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersSeller Contracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Focus Media Holding LTD), Asset Purchase Agreement (Sina Corp)
Material Contracts. (a) Section 3.13(a) Schedule 3.24 delivered to HNWC by AMCON prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company AMCON or its Subsidiaries any AMCON Subsidiary is a party or by which they are boundAMCON or any AMCON Subsidiary is bound or under which AMCON or any AMCON Subsidiary has or may acquire any rights, other than a Company Benefit Planwhich were not filed prior to the date hereof as exhibits to AMCON SEC Documents, and that are not expired which involve or have not been terminated and not including any Contracts pursuant relate to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) obligations of AMCON or any Contract relating to Indebtedness AMCON Subsidiary for borrowed money or other indebtedness where the amount of such obligations exceeds $6,000,000 individually, (ii) the Company lease by AMCON or its Subsidiaries any AMCON Subsidiary, as lessee or to lessor, of real property for rent of more than $6,000,000 per annum, (iii) the placing purchase or sale of a Lien goods (other than a Permitted Lienraw material to be purchased by AMCON on terms that are customary and consistent with the past practice of AMCON and in amounts and at prices substantially consistent with past practices of AMCON) on any material assets or properties services with an aggregate minimum purchase price of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesmore than $6,000,000 per annum, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) rights to manufacture and/or distribute any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, product which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from accounted for more than $45,000,000 of the Company or consolidated revenues of AMCON and its Subsidiaries during the fiscal year ended September 30, 2000 or under which AMCON or any AMCON Subsidiary received or paid license or other fees in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than during any Non-Scheduled Contracts);
year, (v) the purchase or sale of assets or properties not in the ordinary course of business having a purchase price in excess of $6,000,000, (vi) the right (whether or not currently exercisable) to use, license (including any Contract that "in-license" or "outlicense"), sublicense or otherwise exploit any intellectual property right or other proprietary asset of AMCON or of any of Subsidiary of AMCON or any other Person which, is material to AMCON; (vii) any material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of AMCON or any Subsidiary of AMCON (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closingother Person, (B) contains to acquire any exclusivityproduct or other asset or any services from any other Person, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; or consulting Contract with severance, change in control, retention (x) individual capital expenditures or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 6,000,000. All such contracts and agreements are duly and validly executed by AMCON or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretosuch AMCON Subsidiary, and is are in full force and effect and enforceable in accordance with its terms against the Company or all material respects. Neither AMCON nor any of its Subsidiaries has violated or breached, or committed any default under, any contract or agreement, and, to the Company’s Knowledgeknowledge of AMCON, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium no other Person has violated or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have an AMCON Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by AMCON or any Subsidiary of AMCON under any contract or agreement or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement, (C) accelerate the maturity or performance of any contract or agreement, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatagreement, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have an AMCON Material Adverse Effect. All such contracts and agreements will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Hawaiian Natural Water Co Inc), Merger Agreement (Amcon Distributing Co), Merger Agreement (Hawaiian Natural Water Co Inc)
Material Contracts. (a) Section 3.13(a) Schedule 4.19 of the Company Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company Exchange Act);
(ii) each Contract that provides for the acquisition, disposition, license, use, distribution or its Subsidiaries is a party outsourcing of assets, services, rights or by which they are bound, properties (other than a Company Benefit Plan, Oil and that are not expired or have not been terminated and not including any Contracts pursuant Gas Properties) with respect to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of reasonably expects that the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies its Subsidiaries will make annual payments in excess of the Contracts listed on Section 3.13(a) $100,000 or aggregate payments in excess of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):$1,000,000;
(iiii) any each Contract relating to (A) for Indebtedness for borrowed money or the deferred purchase price of property by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or to secured by any asset) or (B) that creates a capitalized lease obligation, except, in the placing cases of a Lien clauses (A) and (B) with an aggregate principal amount not in excess of $200,000, and other than a Permitted Lien) on any material assets agreements solely between or properties of among the Company or and its Subsidiaries;
(iiiv) any each Contract under to which the Company or any Subsidiary of the Company is a party that (A) restricts the ability of the Company or any Subsidiary of the Company to compete in any business or with any Person in any geographical area, (B) requires the Company or any Subsidiary of 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 favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that are not material to the Company and its Subsidiaries;
(v) any Contract providing for the purchase or sale by the Company or any of its Subsidiaries is lessee of Hydrocarbons that (A) has a remaining term of greater than sixty (60) days and does not allow the Company or holds such Subsidiary to terminate it without penalty on sixty (60) days’ notice or operatesless, (B) contains a minimum throughput commitment, minimum volume commitment, “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 or (C) contains acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead that, in each case, cover, guaranty, dedicate or commit (I) more than 1,000 net acres or (II) volumes in excess of 10,000 MMcf of gas or 2,000 boe of liquid Hydrocarbons on a monthly basis (calculated on a yearly average basis);
(vi) any tangible property acquisition or divestiture Contract that contains “earn out” or other similar contingent payment obligations (other than real propertyasset retirement obligations, plugging and abandonment obligations and other reserves of the Company set forth in the Company Reserve Report), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or that would reasonably be expected to require result in annual payments in excess of $100,000;
(based on vii) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving payments in excess of $100,000 in any occurrence, development, activity calendar year or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract that are not terminable without penalty or (B) other Contract with respect liability to material the Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any ongoing obligation pursuant to such Contract that is not caused by any such termination) within sixty (A60) limits or purports to limitdays, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant Contracts related to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000drilling rigs;
(viii) any each Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for that could require the disposition of any portion of the material assets or line of business of the Company or its Subsidiaries or for (or, after the acquisition by the Company Effective Time, Parent or its Subsidiaries Subsidiaries);
(ix) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any material amount of the assets or business properties of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (including any Oil and Gas Properties), taken as a whole, other than Contracts involving the acquisition or Parent sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(x) each ISDA Master Agreement for any Derivative Transaction;
(xi) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of its Affiliates after the Closing)Company; and
(xiiixii) each collective bargaining joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or other similar Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of requiring the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementexpenditures from and after January 1, termination of employment or both; and
(xvii) any other Contract the performance of which requires 2020 that either (A) annual payments would reasonably be expected to or from the Company or its Subsidiaries be in excess of $300,000 or 1,000,000 in the aggregate, (B) aggregate payments is material to the operation of the Company and its Subsidiaries, taken as a whole, or from (C) contains an area of mutual interest or any “tag along” or “drag along” (or similar rights) allowing a third party, or requiring the Company or any of its Subsidiaries Subsidiaries, to participate in excess of $1,500,000 over the life any future transactions with respect to any assets or properties of the agreement andCompany and its Subsidiaries, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less other than thirty (30) days’ prior written noticecustomary joint operating agreements and continuous development obligations under Oil and Gas Leases.
(ib) Each Collectively, the Contracts that are required to be set forth in Section 4.19(a) are herein referred to as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is valid legal, valid, binding and binding enforceable in accordance with its terms on the Company or and each of its Subsidiaries, as applicableSubsidiaries that is a party thereto and, to the knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, neither the Company or nor any of its Subsidiaries andis in breach or default under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is any other party to any such Company Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Subsidiaries, or, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true and complete copies of all Material Contracts in effect as the knowledge of the date hereof (Company, threatened with respect to any Company Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Company Contract to terminate for default, invoicesconvenience or otherwise any Company Contract, and similar confirmatory or administrative documents that are ancillary nor to the main contractual relationship between knowledge of the parties Company, is any such party threatening to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Company Material Adverse Effect.
Appears in 4 contracts
Samples: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (HighPoint Resources Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Except (i) through as filed as exhibits to the Company SEC Documents, (xiiiii) below to whichfor this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date of this Agreementhereof, neither the Company or its Subsidiaries nor any Subsidiary of the Company is a party to or is bound by which they are boundany Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, other than a Company Benefit Plan2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are not expired or have not been terminated and not including any ancillary to Contracts pursuant to which the Company has with no material outstanding revenue is paid or executory obligations or Liabilities (such Contracts as are required payable to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which that is with the ten (10) largest vendors of the Company or and its Subsidiaries is lessor during the fiscal year ended January 31, 2024 (as determined based on cost of or permits any third party goods and services paid to hold or operate, in each case, any tangible property (other than real property), owned or controlled such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or its Subsidiariesstatements of work or invoices entered into in the ordinary course of business, except for any lease and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or agreement under which payable by the aggregate annual rental payments do not exceed $200,000Company);
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development that is a Government Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, evidencing a capital expenditure for which future payments are required in any material respect, the freedom excess of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing$5,000,000;
(vi) relating to the disposition or acquisition of any Contract requiring business, equity, or all or substantially all of the assets of any future capital commitment or capital expenditure (or series Person for aggregate consideration in excess of capital expenditures) $5,000,000 by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course ordinary course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) business pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any have material Company Product or any material Intellectual Propertycontinuing obligations;
(xivii) containing (A) a covenant or other provision limiting in any Contract for material respect the disposition of any portion of the assets or business ability of the Company or its Subsidiaries or for the acquisition by any Subsidiary of the Company to compete or its Subsidiaries engage in any line of the assets business or business of to compete with any other Person (in any geographic area, other than acquisitions any customary employee non-solicitation or dispositions made no-hire clauses entered into in the Ordinary Course ordinary course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementbusiness, (B) with a Governmental Authority “most favored nation”, “exclusivity” or similar provisions, (C) that imposes any material, non-monetary obligations on the Company a right of first refusal or its Subsidiaries (or Parent or any right of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and first offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, right that will result in any obligation (absolute or contingent) limits the ability of the Company or any of its Subsidiaries to make any sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment or incur any Liability as a result obligation of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or and its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andSubsidiaries, in each case, that is not terminable by material to the applicable Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries without penalty upon less of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than thirty non-exclusive licenses granted to customers in the ordinary course of business, and/or (30C) daysthat is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ prior written noticeagreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(ib) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract is Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or its Subsidiariesthe applicable Subsidiary of the Company, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is (B) in full force and effect effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and enforceable other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in accordance with its terms against the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company or its Subsidiaries nor any Subsidiary of the Company has, and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, none of the counterparties other parties thereto are not in material breach have, violated any provision of, or default committed or failed to perform any act under, any Material Contract and (iii) no event has occurred that or condition exists, which (with or without due notice or notice, lapse of time or both) would result in constitute a material breach of, of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract by has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any 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 and its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatthan, in each case, do as would not contain any material executory or continuing terms, conditions, obligations or rights)reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleSchedule 3.9 hereto, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) none of the Company or any of its Subsidiaries is a party to make any payment oral or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementwritten contract, termination of employment commitment or both; and
agreement (xviii) any that, other Contract the performance of which requires either (A) annual payments than with respect to or from Material Leases, obligates the Company or its Subsidiaries in excess of $300,000 any Subsidiary to pay or (B) aggregate payments to or from entitles the Company or its Subsidiaries in excess any Subsidiary to receive an amount, from and after the date hereof, of $1,500,000 over 250,000 or more annually; (ii) restricting the life Company's or any Subsidiary's ability to conduct the outdoor or mall advertising business generally in any geographic location (including applicable non-competes or similar agreements); (iii) that provides for the lease, sublease, license or other similar rights of possession or occupancy of real property (as tenant, occupier or possessor) used primarily for billboard sites, pursuant to which the agreement and, in each case, that is not terminable current net annual rent payable by the applicable the Company or its Subsidiaries without penalty upon less than thirty any Subsidiary currently exceeds $50,000 (30the "MATERIAL LEASES"); or (iv) days’ prior written notice.
(i) Each Material Contract is valid and binding on evidences indebtedness of the Company or any Subsidiary for money borrowed (whether incurred, assumed, guaranteed or secured by any asset) and, with respect to all such contracts, commitments and agreements, except as set forth on Schedule 3.9 hereto, neither the Company nor any of its Subsidiaries, as applicablenor, to the knowledge of the Company’s Knowledge, any other party to any such contract, commitments and agreements is, in breach thereof or default thereunder and there does not exist under any provision thereof, to the counterparties theretoknowledge of the Company, any event that, with the giving of notice or the lapse of time or both, would constitute such a breach or default, except for such breaches, defaults and is events as to which requisite waivers or consents have been obtained or which would not, individually or in the aggregate, have a Material Adverse Effect. Complete and correct copies of each contract, commitment and agreement set forth on Schedule 3.9 have been furnished or made available to Buyer, and, to the knowledge of the Company, all of such contracts, commitments and agreements are valid, binding and in full force and effect except for such failures to be so valid, binding and enforceable in accordance with its full force and effect which, individually or in the aggregate, would not a Material Adverse Effect.
(b) Pursuant to the terms against of the Credit Agreement and the Revolving Credit Commitments or other applicable governing documents, the Obligations and any other Indebtedness of the Company or and its Subsidiaries andthereunder may be pre-paid by Buyer on the Closing Date pursuant to Section 6.10, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)requirements contemplated thereby.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Universal Outdoor Holdings Inc), Stock Purchase Agreement (Universal Outdoor Inc), Stock Purchase Agreement (Universal Outdoor Inc)
Material Contracts. (aSchedule 3.1(s) Section 3.13(a) of delivered to Parent by the Company Disclosure Schedule contains a listing prior to the execution of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company or its Subsidiaries any Subsidiary is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries Subsidiary is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), bound or under which the Company or its Subsidiaries any Subsidiary has or may acquire any continuing obligation with respect rights, which were not filed prior to an “earn-out,” contingent purchase price the date hereof as exhibits to the Company Commission Filings, which involve or relate to (i) obligations of the Company or any Subsidiary for borrowed money or other contingent or deferred payment obligation;
indebtedness where the amount of such obligations exceeds $100,000 individually, (xiiii) any settlement, conciliation or similar Contract (A) requiring monetary payments the lease by the Company or any Subsidiary, as lessee or lessor, of real property for rent of more than $100,000 per annum, (iii) the purchase or sale of goods (other than raw material to be purchased by the Company on terms that are customary and consistent with the past practice of the Company and in amounts and at prices substantially consistent with past practices of the Company) or services with an aggregate minimum purchase price of more than $100,000 per annum, (iv) rights to manufacture and/or distribute any Pharmaceutical Product which accounted for more than $100,000 of the consolidated revenues of the Company and its Subsidiaries after during the date fiscal year ended December 31, 1998 or under which the Company or any Subsidiary received or paid license or other fees in excess of this Agreement$100,000 during any year, (v) the purchase or sale of assets or properties not in the ordinary course of business having a purchase price in excess of $100,000, (vi) the right (whether or not currently exercisable) to use, license (including any "in-license" or "outlicense"), sublicense or otherwise exploit any intellectual property right or other proprietary asset of the Company or of any of Subsidiary of the Company or any other Person which, when considered together with all such other rights, is material to the Company; (vii) any material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of the Company or any Subsidiary of the Company (A) to compete with any other Person, (B) with a Governmental Authority to acquire any product or other asset or any services from any other Person, (C) that imposes to solicit, hire or retain any materialPerson as an employee, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; or consulting Contract (x) individual capital expenditures or commitments in excess of $100,000. All such contracts and agreements are duly and validly executed by the Company or such Subsidiary, and are in full force and effect. Neither the Company nor any of its Subsidiaries has violated or breached, or committed any default under, any contract or agreement, and, to the knowledge of the Company, no other Person has violated or breached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with severanceother violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole. No event has occurred which, after notice or the passage of time or both, would constitute a default by the Company or any Subsidiary of the Company under any contract or agreement or give any Person the right to (A) declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in controldelivery schedule under any contract or agreement, retention (C) accelerate the maturity or similar arrangementsperformance of any contract or agreement, that will result or (D) cancel, terminate or modify any contract or agreement, in any obligation each case which, together with all other events of the types referred to in clauses (absolute or contingentA), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a material adverse effect on the Company or any of its Subsidiaries to make any payment or incur any Liability taken as a result of whole. Except as disclosed on Schedule 3.1(s), all such contracts and agreements will continue, after the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableEffective Time, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable be binding in accordance with its their respective terms against until their respective expiration dates. As soon as practicable after the date hereof, the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement shall provide Parent with a list of creditors’ rights and subject to general principles all leases for real property for rent of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto more than $30,000 per annum which are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightslisted on Schedule 3.1(s).
Appears in 3 contracts
Samples: Merger Agreement (Warburg Pincus Investors Lp), Merger Agreement (Nexstar Pharmaceuticals Inc), Merger Agreement (Gilead Sciences Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichEach contract, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company document or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
instrument (xivcollectively "SEC Contracts") any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of to which the Company or any of its Subsidiaries is a party that was required to make be filed as an exhibit to the Company's annual report on Form 10-K for the year ended July 31, 1997 was so filed and, neither the Company nor any payment of its Subsidiaries (A) has entered into, from and after July 31, 1997, any contract, agreement or incur other document or instrument (other than this Agreement) that is required to be filed with the SEC that has not been so filed on or before the date of this Agreement or any Liability amendment, modification or waiver under any contract, agreement or other document or instrument that was previously so filed, which amendment, modification or waiver is required to be so filed (collectively "Additional SEC Contracts") or (B) except as listed on Schedule 4.1(s), is a result party to any oral or written agreement, plan or arrangement with any officer, director or employee of the consummation Company or of any Subsidiary of the Company (collectively "Material Employment Contracts" and together with the SEC Contracts and Additional SEC Contracts, the "Material Contracts")
(1) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature of any of the transactions contemplated by this Agreement, (2) providing severance benefits or other benefits after the termination of employment regardless of the reason for such termination of employment, (3) under which any person may receive payments subject to the tax imposed by Section 4999 of the Code, or both; and
(xvii4) any other Contract of the performance benefits of which requires either (A) annual payments to will be increased, or from the Company or its Subsidiaries in excess vesting of $300,000 or (B) aggregate payments to or from benefits of which will be accelerated, by the Company or its Subsidiaries in excess occurrence of $1,500,000 over the life any of the agreement andtransactions 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. Except as set forth on Schedule 4.1(s), in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is a valid and binding on obligation of the Company or its Subsidiaries, as applicableand, to the Company’s Knowledge's knowledge, the counterparties thereto, each other party thereto and is in full force and effect and enforceable in accordance with its terms against without amendment. Except as set forth on Schedule 4.1(s), the Company or its Subsidiaries and, to the Company’s Knowledge's knowledge, each other party thereto has performed all obligations required to be performed by it through the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally date hereof under the enforcement of creditors’ rights Material Contracts and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are is not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or giving notice, or both) would result in a material breach of, or default under, in any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)respect thereunder.
Appears in 3 contracts
Samples: Merger Agreement (Hadco Acquisition Corp Ii), Merger Agreement (Continental Circuits Corp), Merger Agreement (Hadco Acquisition Corp Ii)
Material Contracts. (a) Section 3.13(a3.7(a) of the Company Disclosure Schedule contains Schedules sets forth a listing list of all the following Contracts described in clauses to which any RemainCo Entity (ias it relates to the Business) through (xiii) below to whichor any Group Company is, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they any of the assets or properties of any RemainCo Entity (as it relates to the Business), any Group Company or the Business are bound, other than a Company Benefit Plan, and that are not expired bound or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities subject (such Contracts as are each Contract required to be set forth on Section 3.13(a3.7(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date hereof that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedule if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the any Group Company or its Subsidiaries the Business which exceed $50,000 individually or to $100,000 in the placing aggregate, or the incurrence of a any Lien (other than a Permitted Lien) on any material assets or properties of the any Group Company or its Subsidiariesthe Business in connection thereof;
(ii) any Contract under which the any Group Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Personin each case, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000100,000;
(iii) any Contract under which the any Group Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariesin each case, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000100,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would Contract that is reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate annual payments to or from any RemainCo Entity (as it relates to the Business), any Group Company or its Subsidiaries in excess the Business of more than $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)50,000;
(v) any Contract with any Significant Customer or Significant Supplier;
(vi) any Contract with any Person that distributes, retransmits or otherwise makes available content to subscribers or other customers with respect to the distribution or retransmission of, or the granting of rights or the licensing of, any content related to the Business;
(vii) any Contract with any Person with respect to the (co-)production of any content related to the Business;
(viii) any Contract concerning the establishment or operation of a partnership, strategic alliance, joint venture, limited liability company or similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, joint venture or limited liability company or other similar Contract;
(ix) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the any Group Company or its Subsidiaries the Business 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 operations of Parent TopCo or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or restrictions, (C) contains any other provisions substantially restricting or purporting to restrict the ability of the any Group Company or its Subsidiaries the Business to sell, manufacture, sell or develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect customer or that would so limit or purports to limit, in any material respectrespect TopCo, Parent or any of its Affiliates after the Closing, or (D) obligates any Group Company or the Business to purchase or otherwise obtain any product or service exclusively from a single third party or granting any third party the exclusive right to develop, market, sell or distribute the products or services of the Business;
(vix) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 50,000 annually or (B) $1,000,000 100,000 over the life of the agreement;
(viixi) any Contract requiring any RemainCo Entity (as it relates to the Business) or any Group Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiaryGroup Company, in each case in excess of $200,00050,000;
(viiixii) any Contract to which any Group Company is party under which the such Group Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonPerson in excess of $50,000;
(ixxiii) any Commingled Contracts;
(xiv) any Contract required to be disclosed on Section 3.19 of which any RemainCo Entity (as it relates to the Business) or any Group Company Disclosure Schedule;
(x) is party that has been entered into at any Contract with any Person (A) time within the three year period prior to the date hereof pursuant to which the such RemainCo Entity or Group Company acquired or its Subsidiaries (disposed of a business, assets or Parent equity interests with a purchase price in excess of $50,000 or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) such Contract under which the such RemainCo Entity or Group Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation obligation, including with respect to an indemnity, “earn-out,” ”, contingent purchase price or other contingent or deferred payment obligation;
(xiixv) any settlementContracts pursuant to which any RemainCo Entity or any Group Company grants or receives a (sub-)license, conciliation covenant not to sue or other right or immunity with respect to any Intellectual Property Rights that is (or the tangible embodiment of which is) incorporated into, or distributed or used with, any Company Product or that is otherwise material to the Business, other than non-exclusive licenses granted on generally available terms with respect to off-the-shelf un-customized software;
(xvi) any Contract that would reasonably be expected to prevent, materially delay or materially impede FCB’s or such Group Company’s ability to consummate the Transactions;
(xvii) any Contract to which any Group Company is party (A) that was not negotiated and entered into on an arm’s length basis or any other Contract in respect of a Related Party Transaction or (B) with current or former officers, directors or employees of such Group Company pursuant to which such Group Company has indemnification obligations.
(xviii) any Contract in which the counterparty is a Governmental Entity or any of their respective Affiliates;
(xix) any Collective Bargaining Agreement or any other Contract with any Employee Representative Body, in each case, covering any Business Employee;
(xx) any settlement or other similar Contract (A) requiring monetary that is reasonably likely to be required to make any payments by the Company or its Subsidiaries after the date to any Person of this Agreementmore than $50,000, (B) with a Governmental Authority Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on the any Group Company or its Subsidiaries the Business;
(xxi) any Contract pursuant to which any investment banker or Parent other Person is entitled to a fee or any of its Affiliates after commission in connection with the Closing)Transactions; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xviixxii) any other Contract or group of related Contracts that, individually or in the performance aggregate, if terminated or subject to a default by any party thereto, would have or would reasonably be expected to have a Company Material Adverse Effect.
(b) A copy of which requires either (A) annual payments each Material Contract has been made available by BP to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMountain.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, valid and binding on, and enforceable in accordance with its terms against against, a Group Company and/or a RemainCo Entity, as the Company or its Subsidiaries case may be, and, to the Company’s KnowledgeKnowledge of BP, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or each other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)party thereto, (ii) none of the Company Group Companies or its Subsidiaries andthe RemainCo Entities (as the case may be) nor, to the Company’s KnowledgeKnowledge of BP, the counterparties thereto are not in material breach ofany other party thereto, has taken or failed to take any action that, with or without notice, lapse of time, or both, would or would reasonably be expected to (A) constitute a breach, violation or a default under, under any Material Contract or (B) give any Person the right to declare in default or exercise any remedy under any Material Contract (including the right to accelerate the maturity or any performance thereunder, or to cancel, terminate or modify any Material Contract) and (iii) no event none of the RemainCo Entities or the Group Companies has occurred that (with or without due received written notice or lapse of time or both) would result in from any party to a material breach of, or default under, any Material Contract by the Company or its Subsidiaries orof any intention to terminate, to the Company’s Knowledge, the counterparties thereto. The Company has made available seek renegotiation of terms or to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatnot renew, in each case, do except in the case of each of clauses (i), (ii) and (iii) as would not contain reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of BP, no counterparty to any material executory Material Contract is in breach or continuing terms, conditions, obligations or rights)violation thereof.
Appears in 3 contracts
Samples: Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.)
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports filed with the SEC prior to the date of this Agreement and as set forth on Section 3.13(a3.15(a) of the Company Disclosure Schedule contains Schedule, no Group Company is a listing party to, and no Group Company’s properties or assets are bound by, any of all the types of Contracts described listed in clauses (i) through (xiiixi) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Section 3.15(a) (such types of Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Contract relating that would be required to Indebtedness for borrowed money be filed by the Company pursuant to Item 4 of the Company or its Subsidiaries or Instructions to Exhibits to the placing of a Lien (other than a Permitted Lien) Company’s most recently filed annual report on any material assets or properties of the Company or its SubsidiariesForm 20-F;
(ii) each Contract relating to any Contract under which Indebtedness in respect of any counterparty involving actual or potential liability to the Group Companies in excess of US$7,000,000 during any 12-month period, other than (x) Indebtedness receivable or payable solely between or among the Company’s wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(ii), the Operating Subsidiaries) or between or among the Company or and any of its wholly-owned Subsidiaries is lessee (including, for the purposes of or holds or operates, in each case, any tangible property (other than real propertythis Section 3.15(a)(ii), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Operating Subsidiaries) and (y) accounts receivable and payable incurred in the ordinary course of business consistent with past practice;
(iii) any each Contract under which the Company or its Subsidiaries is lessor in respect of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharingstrategic cooperation or collaboration arrangement, partnership, collaboration, co-promotion, commercialization joint sales or research or development Contractmarketing agreement, or similar Contractpartnership arrangement, in each case, which requires, or would reasonably be expected that is material to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life business of the Contract Group Companies taken as a whole or (B) other agreement involving a sharing of profits, losses, costs or liabilities by any Group Company that is material to the business of the Group Companies taken as a whole;
(iv) each of the Contracts described under the caption “Item 4. Information on the Company—C. Organizational Structure” in the Company’s most recently filed annual report on Form 20-F, which (A) provide the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an “Operating Subsidiary”), (B) provide any Group Company the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfer economic benefits from any Operating Subsidiary to any other Subsidiary of the Company (the contracts and agreements described in (A), (B) and (C), together, the “Control Agreements”);
(v) each Contract with respect pursuant to which the Company or any of its Subsidiaries (A) receives or is granted any license to any material Company Licensed Intellectual Property (other than any Nonnon-Scheduled Contractsexclusive license to off-the-shelf Software generally available on non-discriminatory pricing terms and other than a non-exclusive license granted in the ordinary course of the grantor’s business) or (B) grants any license to any material Intellectual Property (other than a non-exclusive license granted in the ordinary course of the grantor’s business), or each other Contract relating to Intellectual Property or IT Assets not covered by the foregoing (A) or (B) that is material to the Company and its Subsidiaries, taken as a whole;
(vvi) any each Contract that involves the acquisition or disposition, directly or indirectly (Aby merger, license or otherwise), of any securities of any person (other than a Company Share Award) limits or any assets that have a fair market value or purchase price of more than US$3,000,000;
(vii) each Contract (including any distribution agreements) that limits, or purports to limit, in the ability of any material respect, the freedom of the Group Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or during any period of time in a manner that would so limit or purport is material to limitthe Group Companies, in any material respecttaken as a whole, the operations of Parent or any of its Affiliates after the ClosingContract that grants any exclusive rights to any third party (including any exclusive license or exclusive distribution or usage arrangements) if such Contract, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations exclusive rights or restrictions or (C) contains any other provisions restricting or purporting resulting therefrom are material to restrict the ability of the Company or its Subsidiaries to sellGroup Companies, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or taken as a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000whole;
(viii) each Contract between any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its SubsidiariesGroup Company, on the one hand, and any labor union, labor organization directors or works council representing employees officers of any Group Company or their immediate family members or shareholders (other than Parent) of any Group Company holding more than 5% of the Company or its Subsidiariesvoting securities of any Group Company, on the other hand, under which there are material rights or obligations outstanding;
(xivix) each Contract providing for any Contract with the earn-out or similar payment payable by any Group Company or its Subsidiaries, on the one hand, and to any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates person (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentother than to another Group Company);
(xvx) each Contract providing for any employment, consulting, bonus, commissions change of control or similar payments to any Third Party in excess of US$2,500,000;
(xi) each Contract involving payments by the Company or any of its Subsidiaries in excess of US$7,000,000 in the aggregate under each Contract, other compensation than payments between or among the Company’s wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(xi), the Operating Subsidiaries) or between or among the Company and any of its wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(xi), the Operating Subsidiaries);
(xii) each Contract relating to any capital expenditure or any disbursement Contract with an employee a contract value exceeding US$7,000,000;
(xiii) each Contract relating to a royalty or individual consultant or independent contractor, involving aggregate payments dividend arrangement that involves payment by the Company of more than $500,000 per year;
(xvi) any employment US$5,000,000 annually based on revenues or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any material Contract;
(xiv) each share or stock redemption or purchase or other Contract affecting or relating to make any payment or incur any Liability as a result the share capital of the consummation Company or any of its Subsidiaries, including each Contract with any shareholder of the transactions contemplated by this AgreementCompany or any of its Subsidiaries which includes anti-dilution rights, termination voting arrangements or operating covenants;
(xv) each Contract under which the Company or any of employment its Subsidiaries has granted any Person any registration rights, or bothany right of first refusal, first offer or first negotiation with respect to any Ordinary Shares or securities of any Subsidiaries of the Company; and
(xviixvi) any other each Contract the performance of that contains a put, call or similar right pursuant to which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess of $300,000 could be required to purchase or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiariessell, as applicable, any equity interests of any Person.
(b) Except as would not, individually or in the aggregate, reasonably be expected to the have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of a Group Company’s Knowledge, the counterparties theretoas applicable, and is in full force and effect and enforceable against the such Group Company in accordance with its terms terms, subject to the Bankruptcy and Equity Exception, (ii) to the Company’s knowledge, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company or its Subsidiaries and, to the Company’s Knowledgeknowledge, the counterparties thereto (subject no counterparty, is or is alleged to applicable bankruptcy, insolvency, reorganization, moratorium be in breach or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violation of, or default under, any Material Contract and Contract, (iiiiv) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, no person intends to terminate any Material Contract and (v) neither the counterparties theretoexecution of this Agreement nor the consummation of any Transaction shall constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Ali YK Investment Holding LTD), Merger Agreement (Youku Tudou Inc.)
Material Contracts. Schedule 2.8 sets forth a list of all of the following contracts and agreements for the Company and the Subsidiaries:
(a) Section 3.13(a) all contracts or leases, and guarantees of contracts or leases, with respect to which the Company Disclosure Schedule contains or any Subsidiary has a listing stated obligation or expected payments of all Contracts described in clauses (i) through (xiii) below to which, as of more than $100,000 within the period from the date of this AgreementAgreement through December 31, the Company or its Subsidiaries is a party or by which they are bound2013, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which purchase orders entered into in the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) ordinary course of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesbusiness;
(iib) any Contract under which contracts relating to Closing Indebtedness, the Company or its Subsidiaries is lessee borrowing of or holds or operatesmoney, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled guaranty by the Company or its Subsidiaries, except any Subsidiary of any obligation for the borrowing of money or any lease or agreement capital lease;
(c) contracts under which the aggregate annual rental amount payable by the Company or any Subsidiary is dependent on the revenue, income or other similar measure of the Company, any Subsidiary or any other Person and the expected payments do not by the Company or such Subsidiary thereunder is expected to exceed $200,000100,000 within the period from the date of this Agreement through December 31, 2013;
(ivd) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or agreements with any Person non-compete, exclusivity or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict provision that restricts the ability of the Company or its Subsidiaries any Subsidiary to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, conduct business in any material respect, Parent or any of its Affiliates after the Closing;
(vie) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary employment agreements that contemplate payments by the Company or its Subsidiaries after the date any Subsidiary in excess of this Agreement, $100,000 per annum (B) with a Governmental Authority or (C) that imposes excluding statutory employment agreements required by any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingforeign Legal Requirement below $150,000 per annum); and;
(xiiif) each collective bargaining agreement or other Contract contracts with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization union or works council representing association relating to current employees of the Company or its Subsidiariesany Subsidiary, on the other handor collective bargaining agreements;
(xivg) contracts with any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Company;
(xvh) any employmentmaterial original equipment manufacturer, consultingsupply, bonus, commissions distribution or any other compensation Contract reseller agreements;
(i) material research and development agreements;
(j) contracts with an employee Governmental Authorities or individual consultant or independent contractorstate corporations, involving aggregate a stated obligation or expected payments of more than $500,000 per year100,000;
(xvik) material strategic alliance, partnership or joint venture agreements;
(l) contracts with any employment or consulting Contract Material Customer;
(m) contracts with severance, change any Material Vendor;
(n) contracts providing for consultation services in control, retention or similar arrangements, that will result in any obligation excess of $100,000 per annum;
(absolute or contingento) of material contracts for which the Company or any Subsidiary is the recipient or grantor of its Subsidiaries a license or sublicense (of any tier) of any Intellectual Property, except licenses to make any payment software that is generally commercially available (the “IP Licenses”);
(p) all Leases;
(q) contracts involving the purchase, storage or incur any Liability as a result disposal of the consummation of the transactions contemplated by this Agreement, termination of employment or bothHazardous Substances; and
(xviir) any other Contract contracts involving the government of or performance of in a foreign state against which requires either the United States now has or has maintained within the last five (A5) annual payments to years trade sanctions or from travel restrictions or which the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life United States has listed as a terrorist state. All of the agreement and, in each case, that is not terminable by foregoing contracts are sometimes collectively referred to herein as the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice“Material Contracts.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. ” The Company has made available to Parent true and complete correct copies of all Material Contracts in effect Contracts. The Company or such Subsidiary, as the case may be, and to the knowledge of the date hereof (Company, each other than purchase ordersparty thereto has performed all material obligations required thereunder. Neither the Company nor any of the Subsidiaries is in default in any material respect of any Material Contract. To the knowledge of the Company, invoicesno third party is in default in any material respect of any Material Contract. Except as set forth on Schedule 2.4, neither the execution and similar confirmatory or administrative documents that are ancillary to delivery of this Agreement nor the main contractual relationship between consummation of the parties Transactions will afford any other party to a particular Material Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)the right to terminate such Material Contract.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Gsi Group Inc)
Material Contracts. (a) Section 3.13(aSchedule 3.18(a) of the Company Contributor Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date Execution Date, of this Agreement, the Company or its following to which any of the Contributor Subsidiaries is a party or by which they any of their respective assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating to Indebtedness each contract that provides for borrowed money the acquisition, disposition, license, use, distribution, or outsourcing of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets assets, services, rights, or properties with respect to which Contributor reasonably expects that the Contributor Subsidiaries will make annual payments in excess of the Company $10,000,000 or its Subsidiariesaggregate payments in excess of $100,000,000;
(ii) each contract relating to Indebtedness for Borrowed Money or the deferred purchase price of property by any Contract under which of the Company Contributor Subsidiaries (whether incurred, assumed, guaranteed, or its Subsidiaries is lessee of or holds or operatessecured by any asset), in each case, any tangible property (other than real property), owned by any other Person, except for any lease agreements solely between or agreement under which among the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Contributor Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in those involving an amount in excess of (A) $300,000 annually Indebtedness for Borrowed Money or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ordeferred purchase price, individually or in the aggregate, of no more than $100,000,000;
(iii) any acquisition or divestiture contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, for which any Contributor Subsidiary may be liable;
(iv) each contract for lease of personal property or real property (other than the Contributor Real Property Leases and the Contributor Rights-of-Way) involving payments in excess of $10,000,000 in any calendar year or aggregate payments in excess of $100,000,000 that are not terminable without penalty or other liability to the Contributor Subsidiaries (other than any ongoing obligation pursuant to such contract that is not caused by any such termination) within 60 days;
(v) each contract that is a non-competition contract or other contract that (A) purports to limit in any material respect either the type of business in which the Contributor Subsidiaries may engage or the manner or locations in which any of them may so engage in any business, (B) could require the disposition of any material assets or line of business of the Contributor Subsidiaries, or (C) prohibits or limits the rights of the Contributor Subsidiaries to make, sell, or distribute any products or services, or use, transfer, or distribute, or enforce any of their rights with respect to, any of their material assets;
(vi) each Hydrocarbon purchase and sale, gathering, treating, transportation, processing, compression or similar contracts entered into by any Contributor Subsidiary that (A) (1) if a fee-based contract, provides for aggregate payments to or from such Contributor Subsidiary during any fiscal year in excess of $25,000,000, or (2) if a percentage of proceeds contract, is reasonably anticipated to result in a share of proceeds retained by such Contributor Subsidiary for its own account during any such fiscal year in excess of $25,000,000, or (B) (y) involves the gathering, treating, transportation, processing, compression, purchase, sale, or storage of more than 50 MMcf of gaseous Hydrocarbons per day, or 2,500 barrels of liquid Hydrocarbons per day, or (2) provides for an acreage dedication or similar commitment;
(vii) each contract for any Derivative Transaction;
(viii) each collective bargaining agreement or other labor-related contract with a labor union, works council, or other labor organization;
(ix) any employment contract that (i) requires annualized base salary payments in excess of $150,000, (ii) provides for change in control or transaction bonuses, or (iii) provides for severance in excess of one month of base salary or notice of termination in excess of thirty (30) days;
(x) each material partnership, joint venture, or limited liability company agreement;
(xi) each agreement under which any of the Contributor Subsidiaries has advanced or loaned any amount of money to any of its officers, directors, employees, or consultants, in each case with a principal amount in excess of $150,000;
(xii) any contract not entered into in the ordinary course of business that is a water rights agreement or disposal agreement or relates to the sourcing, transportation, or disposal of water (including brine water and flowback water) that (A) provides for an acreage dedication in excess of 10,000 gross surface acres, or (B) that could reasonably be expected to result in the receipt or payment by any of the Contributor Subsidiaries of an amount in excess of $100,000,000 over the remaining term of such agreement;
(xiii) any contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments, area of mutual interest or capacity reservation fees;
(xiv) any contract with any Governmental Entity (other than the Contributor Permits);
(xv) any contract that obligates any of the Contributor Subsidiaries to make any future capital commitment, loan, or expenditure in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year100,000,000;
(xvi) each contract for any employment Contributor Related Party Transaction;
(xvii) each agreement that contains any “most favored nation” or consulting Contract with severancemost favored customer provision, change in controlcall or put option, retention preferential right, or similar arrangementsrights of first or last offer, that will result negotiation, or refusal, other than those contained in any obligation (absolute or contingent) agreement in which such provision is solely for the benefit of the Company or Contributor Subsidiaries, to which any of its the Contributor Subsidiaries is subject, and is material to make any payment or incur any Liability the business of the Contributor Subsidiaries, taken as a result of whole;
(xviii) each contract that constitutes a pipeline interconnect or facility operating agreement;
(xix) any contract whereby the consummation of Contributor Subsidiaries lease capacity (whether firm or interruptible) on a third party pipeline or lease capacity on the transactions contemplated by this Agreement, termination of employment or bothContributor Midstream Facilities to a third-party shipper; and
(xviixx) any other Contract the performance of which contract that requires either (A) annual or entitles any Contributor Subsidiary to make or receive payments to or from the Company or its Subsidiaries in excess of $300,000 10,000,000 or (Bmore annually; provided, however, that Contributor shall have no obligation to list any contract on Schedule 3.18(a) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andContributor Disclosure Letter to which Permian Highway JV is a party, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticebut all such contracts shall otherwise constitute Contributor Contracts for purposes of Section 3.18(b).
(ib) Each Material Contract is valid Collectively, the contracts set forth in Section 3.18(a) (excluding, for the avoidance of doubt, any Contributor Real Property Lease or Contributor Right-of-Way) are herein referred to as the “Contributor Contracts.” A complete and binding on correct copy of each of the Company or its Subsidiaries, as applicable, Contributor Contracts has been made available to the Company. Except as has not had and would not have, individually or in the aggregate, a Contributor Material Adverse Effect, each Contributor Contract is legal, valid, binding, and enforceable in accordance with its terms on the Contributor Subsidiary that is a party thereto and, to Contributor’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and would not have, individually or in the Companyaggregate, a Contributor Material Adverse Effect, (i) neither Contributor nor any of the Contributor Subsidiaries is in breach or default under any Contributor Contract nor, to Contributor’s Knowledge, the counterparties thereto (subject is any other party to applicable bankruptcyany such Contributor Contract in breach or default thereunder, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Contributor Subsidiaries, or, to the CompanyContributor’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true Contributor’s Knowledge, threatened with respect to any Contributor Contract and complete copies of all Material Contracts in effect as neither Contributor nor any of the date hereof (Contributor Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Contributor Contract to terminate for default, invoicesconvenience, and similar confirmatory or administrative documents that are ancillary otherwise any Contributor Contract, nor Contributor’s Knowledge, is any such party threatening to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Contributor Material Adverse Effect.
Appears in 2 contracts
Samples: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Material Contracts. (a) Section 3.13(a4.19(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue, correct and complete list, as of the date hereof, and the Company has made available to Parent and Merger Sub (or Parent’s outside counsel) true, correct and complete copies of this Agreementeach Contract (and any material amendments, supplements and modifications thereto) which is in effect as of the date hereof (or pursuant to which the Company or any of its Subsidiaries has any continuing obligations thereunder) and under which the Company or any of its Subsidiaries is a party or by which they are boundthe Company, other than a Company Benefit Planany of its Subsidiaries or any of their respective properties or assets is bound that (provided, that the true, correct and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be complete list set forth on Section 3.13(a4.19(a) of the Company Disclosure Schedule, Letter shall exclude any Contracts under which Parent or any of its Affiliates is a party):
(i) has been filed or is required to be filed by the Company as a “Material Contracts”). True, correct and complete copies material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K (provided that such Contracts listed on need not be set forth in Section 3.13(a4.19(a) of the Company Disclosure Schedule Letter if true, correct and complete (subject to redactions) copies of such Contracts have previously been made available filed as exhibits to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or SEC Reports prior to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof);
(ii) any Contract under which involving aggregate payments by the Company or and its Subsidiaries is lessee or aggregate payments payable to the Company and its Subsidiaries under such Contract of or holds or operatesmore than $250,000 in the twelve (12) month period prior to the date of this Agreement and in any prospective twelve (12) month period (including, in each case, any tangible property (other than real propertyby means of royalty, milestone or similar payments), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract contains covenants that (A) limits or purports to limit, limit in any material respect, respect the freedom of the Company or any of its Subsidiaries (or, after consummation of the Merger, would limit in any material respect the freedom of the Surviving Corporation and its Affiliates) to compete or engage or compete in any line of business business, drug discovery or any development program, therapeutic area or geographic area, or with respect to any class of compounds, molecules or products, or with any Person Person, (B) contain any “most favored nations” or in any area or that would so limit or purport to limit, in any material respect, similar preferential pricing terms and conditions granted by the operations of Parent Company or any of its Affiliates after the ClosingSubsidiaries, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains contain exclusivity obligations (or similar requirement) or otherwise limit in any other provisions restricting material respect the freedom or purporting to restrict the ability right of the Company or any of its Subsidiaries to sell, manufactureresearch, develop, commercializesell, test distribute or research products, directly manufacture any products or indirectly through third parties, services or to solicit customers;
(iv) grants any potential employee third party rights of first refusal, rights of first option, rights of first offer or customer, in each case, similar rights or options to purchase or otherwise acquire any interest in any of the material respect properties or that would so limit or purports to limit, in any assets (including material respect, Parent Intellectual Property Rights) owned by the Company or any of its Affiliates after Subsidiaries;
(v) provides for or governs the Closingformation, creation, operation, management or control of (A) any partnership, joint venture, strategic alliance, collaboration, co-promotion or profit-sharing arrangement or (B) any material research and development arrangement (each Contract under subclauses (A) and (B), a “Collaboration Agreement”);
(vi) provides for the assignment or grant of a license, right or immunity (including a covenant not to xxx or right to enforce or prosecute any Contract requiring Patents) by a third party for any future capital commitment of its Intellectual Property Rights to the Company or capital expenditure any of its Subsidiaries, other than Incidental Contracts;
(vii) provides for the assignment or series grant of capital expendituresa license, right or immunity (including a covenant not to xxx or right to enforce or prosecute any Patents) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (Company Intellectual Property Rights to any third party, other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Incidental Contracts;
(viii) any Contract under which other than solely between or among the Company or its Subsidiaries has, directly or indirectly, made or agreed to make and any loan, advance, or assignment of payment to any Person outside Subsidiary of the Ordinary Course of Business orCompany, individually relates to indebtedness for borrowed money (whether incurred, assumed, guaranteed or in the aggregate, in secured by any asset) having an outstanding principal amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person250,000;
(ix) constitutes any acquisition or divestiture Contract required to be disclosed on Section 3.19 (whether by merger, consolidation, purchase or sale of stock or otherwise) of any interest in any Person or any business, line of business or division thereof, or a portion of the Company Disclosure Scheduleassets of any Person that has not yet been consummated or that has continuing material obligations (which obligations shall include any “earnout” or similar contingent or deferred payments);
(x) involves the settlement of any Contract with any Person pending or threatened claim, action or proceeding (A) pursuant to which the Company or its Subsidiaries (or Parent or with any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this AgreementGovernmental Authority, (B) with a Governmental Authority which requires payment obligations after the date hereof, in excess of $250,000 or (C) that imposes any material, continuing material non-monetary obligations on the Company (which obligations shall include any monitoring or its Subsidiaries (material reporting obligations to any other Person or Parent any obligations that limit in any material respect the ability of the Company or any of its Affiliates after the ClosingSubsidiaries to operate its business); and;
(xiiixi) each collective bargaining agreement or other Contract with has been entered into between the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate director or affiliate (other than a wholly-owned Subsidiary of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentCompany) of the Company or any of its Subsidiaries to make or any payment of their respective “associates” or incur any Liability “immediate family” members (as a result such terms are defined in Rule 12b-2 and Rule 16a-1 of the consummation Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of its Subsidiaries has an obligation to indemnify such officer, director, affiliate or family member (but not including any Plans);
(xii) (A) contains any non-solicitation or non-hire restrictions that purport to impose material obligations or restrictions upon any controlling Affiliates of the transactions contemplated by this AgreementCompany pursuant to the terms thereof or (B) purports to assign or grant a license, termination right or immunity to the Intellectual Property Rights of employment or bothany controlling Affiliates of the Company pursuant to the terms thereof; and
(xviixiii) any other has been entered into with a Governmental Authority. Each Contract of the performance type described in clauses (i) through (xiii) above (whether listed on Section 4.19(a) of which requires either (A) annual payments to or from the Company Disclosure Letter or its Subsidiaries in excess of $300,000 or (B) aggregate payments not), other than a Plan, is referred to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeherein as a “Material Contract”.
(b) Except as would not have a Company Material Adverse Effect, (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicablethe Subsidiary of the Company that is a party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)Enforceability Exceptions, (ii) the Company or and its Subsidiaries and, have complied with all obligations required to the Company’s Knowledge, the counterparties thereto are not in material breach of, be performed or default under, any complied with by them under each Material Contract and (iii) there is no event has occurred that (with or without due notice or lapse of time time, or both) would result in a material default under or breach of, or default under, of any Material Contract by the Company or any of its Subsidiaries Subsidiaries, or, to the Knowledge of the Company’s Knowledge, the counterparties by any other party thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordershereof, invoicesneither the Company nor any of its Subsidiaries has received any written notice or claim from any third party to any Material Contract of any default, breach, violation, termination or cancellation under any Material Contract. For purposes of this Section 4.19(b) and similar confirmatory or administrative documents that are ancillary Section 6.1(b)(xv)(B), the term “Material Contract” shall be deemed to include any Contract entered into after the date of this Agreement that, if entered into prior to the main contractual relationship between the parties to date hereof, would qualify as a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Endo International PLC), Merger Agreement (Biospecifics Technologies Corp)
Material Contracts. (a) Section 3.13(a2.8(a) of the Sellers Disclosure Letter sets forth a list of the following Contracts to which an Acquired Company Disclosure Schedule contains is a listing party or otherwise bound, which shall be deemed to constitute “Material Contracts”, true and correct copies of which (including all Contracts described in clauses exhibits, schedules and amendments thereto) have been made available to Purchaser prior to the date hereof:
(i) through (xiii) below to which, as all Contracts that individually involve expenditures by an Acquired Company in excess of $3,000,000 in any of the three calendar years preceding the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, Agreement and that are not expired or have not been terminated and not including any Contracts pursuant to which the an Acquired Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesongoing obligations;
(ii) all Contracts that individually involve the receipt of payments by an Acquired Company in excess of $3,000,000 in any Contract of the three calendar years preceding the date of this Agreement and pursuant to which an Acquired Company has ongoing obligations;
(iii) the Utility Money Pool Agreement, the TransCo Intercompany Notes, the Debt Agreements, the Senior KPCo Notes, the Senior Note Purchase Agreements, and all other Contracts for, or relating to, Indebtedness of an Acquired Company in excess of $3,000,000 in any of the three calendar years preceding the date of this Agreement or under which a security interest has been imposed on any assets, rights or properties of an Acquired Company, which security interest secures outstanding Indebtedness in excess of $3,000,000 in any of the three calendar years preceding the date of this Agreement and pursuant to which an Acquired Company has ongoing obligations;
(iv) all Contracts of guaranty, indemnity or surety by an Acquired Company with outstanding obligations guaranteed or indemnified by such Acquired Company or for which such Acquired Company is a surety in excess of $3,000,000 in any of the three calendar years preceding the date of this Agreement and pursuant to which an Acquired Company has ongoing obligations;
(v) all Intercompany Arrangements involving payments or receipts by or to an Acquired Company in excess of $500,000 in any of the three calendar years preceding the Effective Date or pursuant to which an Acquired Company or any member of the Seller Group has any ongoing obligations or rights with a value allocable to an Acquired Company in excess of $500,000;
(vi) all Contracts granting to any Person any right or option to purchase or otherwise acquire any assets of an Acquired Company involving consideration over the remaining term of any such Contract in excess of $5,000,000, including rights of first option, rights of first refusal, or other preferential purchase rights;
(vii) all Contracts that (x) limit the ability of an Acquired Company to compete in any activity or line of business or in any geographic area or (y) contain any obligation on an Acquired Company, or that would apply to Purchaser or its Subsidiaries Affiliates following the Closing, to use or purchase any material good or material service exclusively from one or more Persons;
(viii) all Contracts relating to the issuance, sale, transfer, disposition, registration, liquidity, granting, encumbering, pledging, voting, repurchase or redemption of any of the Shares or any other equity securities of an Acquired Company or rights in connection therewith (other than the Organizational Documents of the Acquired Companies);
(ix) all settlement, conciliation or similar Contracts with any Governmental Entity or third party that impose any continuing monetary or other ongoing material obligations upon any of the Acquired Companies, except for Contracts filed publicly with FERC or the KPSC in connection with the settlement of a Rate Proceeding;
(x) all Master Leases;
(xi) all Shared Contracts involving payments or receipts in excess of $3,000,000 in value allocated to an Acquired Company in any of the three calendar years preceding the Effective Date;
(xii) all Contracts for Continuing Support Obligations;
(xiii) all Contracts for the procurement of power, energy or capacity, including any power purchase agreement or Contracts committing to the development, purchase or construction of new generation, involving payments by an Acquired Company over the term of such Contract in excess of $3,000,000 and pursuant to which any Acquired Company has any ongoing obligations, other than Contracts for purchases and sales on arm’s-length terms with a delivery term of less than three (3) months ahead;
(xiv) all Contracts relating to fuel supply or transportation involving payments by an Acquired Company over the term of such Contract in excess of $3,000,000 and pursuant to which any Acquired Company has any ongoing obligations;
(xv) all Commercial Xxxxxx having a current market value attributed or allocated to an Acquired Company or any of its assets or involving aggregate consideration or aggregate payment obligations by an Acquired Company over the term of such Contract in excess of $3,000,000;
(xvi) Contracts related to Intellectual Property owned or used by an Acquired Company involving payments or receipts in excess of $3,000,000 in value allocated to an Acquired Company in any of the three calendar years preceding the Effective Date (other than non-exclusive licenses (A) for off-the-shelf or otherwise commercially available software or (B) granted by an Acquired Company in the ordinary course of business);
(xvii) all Collective Bargaining Agreements; and
(xviii) all partnership, joint venture and joint ownership Contracts.
(b) (i) Other than any Intercompany Arrangements severed or terminated in accordance with Section 4.8(a), each Material Contract is lessee a legal, valid and binding obligation of the applicable Acquired Company and, to the Knowledge of Sellers, each counterparty, and is in full force and effect, subject to the Enforceability Exceptions, (ii) neither the applicable Acquired Company nor, to the Knowledge of Sellers, any other party thereto is in breach of, or holds in default under, and no event has occurred which with notice or operateslapse of time or both would constitute any such breach or default, or permit termination, modification or acceleration by such other parties under, any Material Contract, (iii) no Acquired Company has waived any material right under any Material Contract, and (iv) no party to any Material Contract has notified any Seller or any Acquired Company in writing that it intends to terminate or fail to renew at the end of its term such Material Contract, materially increase rates, costs or fees charged under any Material Contract or materially reduce the level of goods or services provided under any Material Contract, except, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do as would not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Adverse Effect.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ohio Power Co), Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Material Contracts. (a) Section 3.13(a4.16(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of each of the following types of contracts and agreements to which the Company or its Subsidiaries any Company Subsidiary is a party or by which they are boundbound (including counterparty name, other than a Company Benefit Plandate, and that are not expired or have not been terminated all amendments of a material nature thereto), excluding for this purpose, any employment contract and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities purchase orders submitted by customers (such Contracts contracts and agreements as are required to be set forth on Section 3.13(a4.16(a) of the Company Disclosure Schedule, excluding any Plan listed on Section 4.10(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) all currently effective contracts and agreements with consideration paid or expected to be payable to the Company or any Contract relating to Indebtedness for borrowed money of the Company Subsidiaries of more than $2,500,000 in the aggregate (including, for greater certainty, consideration paid or its Subsidiaries or payable to the placing of a Lien (other than a Permitted Lien) on Company or any material assets or properties of the Company Subsidiaries pursuant to purchase orders or its Subsidiariesmaster terms applicable to such contracts and agreements) over any 12-month period after December 31, 2018;
(ii) any Contract under which all currently effective contracts and agreements with Suppliers to the Company or its any Company Subsidiary, including those relating to the design, development, manufacture or sale of Products of the Company or any Company Subsidiary, under which aggregate expenditures of more than $2,500,000 in the aggregate (including, for greater certainty, expenditures paid or payable to the Company or any of the Company Subsidiaries is lessee of pursuant to purchase orders or holds master terms applicable to such contracts and agreements with Suppliers) have been paid or operatesare expected to be payable by the Company or any Company Subsidiary, in the aggregate, over any 12-month period after December 31, 2018;
(iii) all management contracts and contracts with other consultants, in each case, excluding Plans and any tangible property employment contracts, that are material to the business of the Company and not terminable without further monetary liability on sixty (other than real property), owned by any other Person, 60) days’ or less notice (except for any lease notice or agreement severance to the extent required under which the aggregate annual rental payments do not exceed applicable Law for non-U.S. employees, and where further potential monetary liability is less than $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property250,000), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) all contracts or agreements involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any Product of the Company or any Company Subsidiary to which the Company or any Company Subsidiary is a party and pursuant to which the Company or any Company Subsidiary has made or is expected to make payments of more than $2,500,000, in the aggregate, over any 12-month period after December 31, 2018;
(Av) joint ventureall contracts and agreements evidencing indebtedness for borrowed money in an amount greater than $2,500,000, profit-sharingand any pledge agreements, security agreements, hypothec or other collateral agreements in which the Company or any Company Subsidiary granted to any person a security interest in or Lien on any property or assets of the Company or any Company Subsidiary that is material to the conduct of the business of the Company and the Company Subsidiaries, and all agreements or instruments guarantying the debts or other obligations of any person;
(vi) all partnership, collaboration, co-promotion, commercialization or research or development Contract, joint venture or similar Contract, in each case, agreements;
(vii) all contracts and agreements with any Governmental Authority to which requires, the Company or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate Company Subsidiary is a party that involve payments to or from by the Company or its any Company Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)2,500,000;
(vviii) any Contract all contracts and agreements that (A) limits limit, or purports purport to limit, in any material respect, the freedom ability of the Company or its Subsidiaries any Company Subsidiary to engage or compete in any line of business or with any Person person or entity or in any geographic area or that would so limit or purport to limitduring any period of time, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personexcluding customary confidentiality obligations;
(ix) all contracts and agreements that relate to the direct or indirect acquisition or disposition of any Contract required to be disclosed on Section 3.19 securities or business (whether by merger, sale of the Company Disclosure Schedulestock, sale of assets or otherwise);
(x) any Contract with any Person (A) pursuant all contracts and agreements relating to which the a Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyInterested Party Transaction;
(xi) all contracts and agreements involving any Contract for the disposition resolution or settlement of any portion of the assets actual or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price threatened Action or other contingent dispute which require payment in excess of $2,000,000 or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary impose continuing obligations on the Company or its Subsidiaries (any Company Subsidiary, including injunctive or Parent or any of its Affiliates after the Closing)other non-monetary relief; and
(xiiixii) each collective bargaining agreement or other Contract with all contracts and agreements not otherwise identified pursuant to the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either foregoing if (A) annual payments the violation, breach, or termination thereof would reasonably be expected to or from the have a Company or its Subsidiaries in excess of $300,000 Material Adverse Effect, or (B) aggregate payments such contacts or agreements are otherwise considered material to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable and the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeon a consolidated basis.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, is a legal, valid and enforceable in accordance with its terms against binding obligation of the Company or its the Company Subsidiaries (as applicable) and, to the knowledge of the Company’s Knowledge, the counterparties thereto (other parties thereto, subject to applicable bankruptcythe Remedies Exceptions, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) neither the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not nor any Company Subsidiary is in material breach or violation of, or material default under, any Material Contract and nor has any Material Contract been canceled by the other party; (iiiii) to the Company’s knowledge, no event has occurred that (with or without due notice or lapse of time or both) would result other party is in a material breach or violation of, or material default under, any Material Contract by Contract; and (iii) the Company and the Company Subsidiaries have not received any notice or its Subsidiaries orclaim of any such breach, to the Company’s Knowledge, the counterparties theretoviolation or default under any such Material Contract. The Company has made available to Parent NGA true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents including any amendments thereto that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, material in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)nature.
Appears in 2 contracts
Samples: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition Corp.)
Material Contracts. (a) Section 3.13(aSchedule 5.09(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichlists, as of the date of this Agreement, the following types of Contracts and agreements to which any Acquired Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts and agreements as are set forth, or required to be set forth forth, on Section 3.13(a) of the Company Disclosure ScheduleSchedule 5.09(a), the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) pension, profit sharing or retirement plans, other than any Contract Multiemployer Plan or any Company Plan, whether or not set forth in Section 5.15 or the Schedules relating thereto;
(ii) Contracts and agreements pursuant to which an Acquired Company has obligated one or more of the Acquired Companies to make capital expenditures that would reasonably be expected to exceed $100,000;
(iii) Contracts and agreements with consideration paid or payable to or by any Acquired Company of more than $250,000, in the aggregate, over any 12-month period;
(iv) Contracts for the services of any officer, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by any Acquired Company;
(v) agreements, indentures or other evidence of Indebtedness relating to Indebtedness for borrowed the borrowing of money of by the Company or its Subsidiaries Acquired Companies or to the mortgaging, pledging or otherwise placing of a Lien (other than a Permitted Lien) on any material assets or properties portion of the Company or its Subsidiariesassets of the Acquired Companies;
(iivi) guaranties of any obligation for Borrowed Money Debt or other material guaranties;
(vii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any individual lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate annual rental payments do not exceed (or are expected to exceed) $500,000100,000 in any 12-month period;
(iiiviii) any Contract lease or agreement under which the Company or its Subsidiaries it is lessor of or permits any third party to hold or operateoperate any property, real or personal, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in a 12-month period;
(ix) other than purchase orders entered into in the ordinary course of business, any Contracts with any customers or suppliers of the Acquired Companies, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries case involving consideration in excess of $1,000,000 over the life 750,000;
(x) Contracts containing any grant, license, sublicense, right, consent, waiver, permission or covenant not to assert any claims relating to or under any Intellectual Property (A) by any of the Contract Acquired Companies to a third party or (B) by a third party to any of the Acquired Companies (excluding licenses of commercially available, non-customized, off-the-shelf Software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000);
(xi) Contracts providing for the invention, creation, conception or other Contract with respect to material Company Licensed development of any Intellectual Property (A) by any of the Acquired Companies for any third party, (B) by any third party for any of the Acquired Companies (other than any Non-Scheduled Personnel IP Contracts) or (C) jointly by any of the Acquired Companies and any third party;
(xii) all Contracts providing for the assignment or transfer of any ownership interest in any Intellectual Property by (A) any of the Acquired Companies to any third party or (B) any third party to any of the Acquired Companies (other than any Personnel IP Contracts);
(vxiii) any Contract that (A) limits Contracts prohibiting or purports to limit, restricting in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict respect the ability of the any Acquired Company or its Subsidiaries to sellengage in any business, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, to operate in any geographical area or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, compete with any Person;
(ixxiv) Contracts relating to the acquisition or disposition (whether in one transaction or a series of transactions and whether by merger, sale, lease, purchase or otherwise) of any Contract required to be disclosed on Section 3.19 equity interests, operating business, or material assets of the Company Disclosure Scheduleany Person or material assets or material line of business;
(xxv) any each joint venture Contract, partnership agreement, limited liability company agreement, strategic alliance agreement or other similar Contract with a third party;
(xvi) Contracts providing for the grant of an option or a first-refusal, first-offer or similar preferential right to purchase, lease or acquire any material asset of the Acquired Companies;
(xvii) Contracts granting exclusivity, “most-favored nation”, “take or pay” or similar rights, or that require or purport to require any Acquired Company to acquire all or a specified portion of its requirements of a particular material good or service from any Person;
(xviii) Contracts with any supplier (A) that is a sole source supplier to the Acquired Companies or (B) from which the Acquired Companies source substantially all of their supply of any material product or service, except in each case where the Acquired Companies would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xix) Contracts under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Transactions or the value of any of the benefits of which shall be calculated on the basis of any of the Transactions, excluding any Multiemployer Plan or any Company Plan;
(xx) Contracts that currently are, or at any point in the three-year period ending on the date of this Agreement were, in effect (A) to which any present or former director, officer, employee, stockholder or holder of derivative securities of the Acquired Companies, or any member of any such Person’s immediate family, or any entity owned or controlled by any such Person, is a party, excluding any Multiemployer Plan or any Company Plan or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which any Acquired Company receives any “preferred pricing” or similar benefit that is utilized by such Acquired Company in the ordinary course;
(xxi) any Contracts (A) of the Company or its Subsidiaries (or Parent or any involving the payment of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments amounts calculated based on upon the revenues or income of any researchAcquired Company or income or revenues related to any product of any Acquired Company that deviate from the Company’s standard form agreements made available to Buyer, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which with the Company Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date of this Agreement;
(xxii) Contracts in respect of any settlements or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights coexistence agreements with respect to any material Company Product pending or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract threatened action (A) requiring monetary payments by the Company or its Subsidiaries after entered into within 12 months prior to the date of this Agreement, or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiii) any Company Related Party Contracts;
(xxiv) Contracts with any Governmental Authority or any Contract with a third party that is a party to a Contract with a Governmental Authority with respect to the subject matter of such underlying Contract;
(xxv) any documents not otherwise covered by (i)-(xxiv) of this Section 5.09(a) that may be required to be filed by the Company as an exhibit for a registration statement on Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (C10) that imposes any material, nonof Regulation S-monetary obligations on K under the Securities Act as if the Company or its Subsidiaries (or Parent or any of its Affiliates after was the Closing)registrant; and
(xiiixxvi) each collective bargaining agreement any written offer or other Contract with the Company or its Subsidiariesproposal that, on the one handif accepted, and would constitute any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeforegoing.
(ib) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, and enforceable in accordance with its terms against is the legal, valid and binding obligation of either the Company or its Subsidiaries a Subsidiary of the Company that is party thereto, and, to the Company’s Knowledgeknowledge, of the counterparties other parties thereto enforceable against each of them in accordance with its terms (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equityEnforceability Exceptions). Except as set forth on Schedule 5.09(b), (ii) the no Acquired Company or its Subsidiaries is in material default under any Material Contract, and, to the Company’s Knowledgeknowledge, the counterparties thereto are other party to each of the Material Contracts is not in material breach ofdefault thereunder. Except as set forth on Schedule 5.09(b), or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach ofor default on the part of the Company, or default under, any Material Contract by Subsidiary of the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, any other party under any Material Contract. To the counterparties knowledge of the Company, (i) no party to any Material Contract has exercised any termination rights with respect thereto, and (ii) no party has given written notice of any material dispute with respect to any Material Contract. The Company has made available to Parent true Buyer true, correct and complete copies of each Material Contract, together with all Material Contracts in effect as of the date hereof (other than purchase ordersamendments, invoices, and similar confirmatory modifications or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)supplements thereto.
Appears in 2 contracts
Samples: Merger Agreement (Unique Logistics International, Inc.), Merger Agreement (Edify Acquisition Corp.)
Material Contracts. (a) Except as set forth in Section 3.13(a3.01(m) of the Company Aztar Disclosure Schedule contains Letter, neither Aztar nor any of its subsidiaries is a listing party to or bound by, as of the date hereof, any of the following (whether or not in writing), collectively with all exhibits and schedules to such Contracts:
(i) any agreement or series of related agreement providing for the acquisition or disposition of securities of any person or any assets, in each case involving more than $1,000,000 individually or in the aggregate, other than in the ordinary course of business consistent with past practice or in connection with the capital expenditure budgets included in Section 4.01(a)(xi) of the Aztar Disclosure Letter;
(ii) any Contract that imposes payment, cancellation penalties or other obligations in connection with the redevelopment or future operation (other than ordinary course hotel operations) of all or any portion of Aztar’s property, facility or operations in Las Vegas, Nevada (the “Las Vegas Site”);
(iii) any Contract or commitment 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 $1,000,000; and
(iv) any Contract that would be required to be filed as an exhibit to an Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (the Contracts described in clauses (i) through – (xiii) below iv), together with all exhibits and schedules to whichsuch Contracts, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct A true and complete copies copy of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have each Material Contract has previously been delivered or made available to Parent Pinnacle. Except as individually or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do has not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do had and would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based have a material adverse effect on any occurrenceAztar, developmenteach Contract by which Aztar or its subsidiaries is bound is a valid and binding agreement of Aztar or one of its subsidiaries enforceable against Aztar or one of its subsidiaries, activity or event contemplated by such Contract)and, aggregate payments to the knowledge of Aztar, the counterparties thereto in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or from affecting creditors rights generally and to equitable principles (whether considered in a proceeding at law or in equity). Aztar and its subsidiaries are not (and to the Company knowledge of Aztar, no counterparty is) in breach or its Subsidiaries violation of or in excess default in the performance or observance of $1,000,000 over the life any term or provision of, and no event has occurred which, with lapse of the Contract time or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) action by a third party or Aztar, would result in a default under, any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent which Aztar or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” subsidiaries is a party or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or by which any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment them is bound or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (of their property is subject, other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarybreaches, in each case in excess of $200,000;
(viii) any Contract under violations and defaults which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave not had and would not reasonably be expected, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in have a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in adverse effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)on Aztar.
Appears in 2 contracts
Samples: Merger Agreement (Pinnacle Entertainment Inc), Merger Agreement (Pinnacle Entertainment Inc)
Material Contracts. (a) Section 3.13(a3.5(a) of the Company Disclosure Schedule contains Letter lists all material Contracts to which any Caravelle Company is a listing party, by which any Caravelle Company is bound or to which any Caravelle Company or any of all Contracts described its assets or properties are subject that are in clauses (i) through (xiii) below to which, effect as of the date of this AgreementAgreement and constitute or involve the following (together with all amendments, waivers or other changes thereto, each of the Company following, a “Material Contract”):
(i) obligations of, or its Subsidiaries is a party payments to, any of the Caravelle Companies of $1,000,000 or by which they are bound, more;
(ii) any outstanding Indebtedness (other than a Company Benefit Plancapitalized lease obligations incurred in the Ordinary Course) of $500,000 or more, and that are not expired or have not been terminated and not including any Contracts pursuant to which convertible debt/equity instruments;
(iii) any real property leasehold interest (“Real Property Lease”) involving aggregate payments in excess of $2,500 per month in the Company has with no material outstanding or executory obligations or Liabilities calendar year ended October 31, 2021;
(such Contracts as are iv) any IP Licenses required to be set forth listed on Section 3.13(a3.6(f) of the Company Disclosure ScheduleLetter;
(v) the grant of rights to manufacture, produce, assemble, license, market or sell any Company Products with an aggregate or one-time consideration exceeding $500,000;
(vi) Contracts with any Governmental Authority;
(vii) Contracts which (A) remain in effect immediately following the “Material Contracts”Closing and limit the right of any Caravelle Company to engage in any line of business or in any geographic area, or to Develop, manufacture, produce, assemble, license or sell any products or services (including the Company Products). , or to compete with any Person; (B) grant any exclusive license of material Intellectual Property to any Person that is not a Caravelle Company or (C) involve any joint, collaborative or other Development or contribution of any material Intellectual Property by any Caravelle Company;
(viii) Contracts between (A) on the one hand, any of the Caravelle Companies, and (B) on the other hand, any Company Shareholder, including all Side Letters;
(ix) Contracts that in the Company’s determination will be required to be filed with the Proxy/Registration Statement under applicable SEC requirements pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act if the Company was the registrant.
(b) True, correct and complete copies of the Contracts required to be listed on Section 3.13(a3.5(a) of the Company Disclosure Schedule Letter, have previously been delivered to or made available to Parent or its agents or representativesSPAC prior to the date of this Agreement, together with all amendments thereto):.
(ic) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do Except as have not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do had and would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Company Material Adverse Effect, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the knowledge of the Company’s Knowledge, all Contracts to which any of the counterparties theretoCaravelle Companies is a party or by which its assets are bound are valid, binding and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other Laws of general application affecting generally the enforcement of creditors’ rights generally and subject by Laws relating to general principles the availability of equity)specific performance, injunctive relief or other equitable remedies, and (ii) none of the Company or its Subsidiaries andCaravelle Companies (nor, to the knowledge of the Company’s Knowledge, any other party to any such Contract) is or, with the giving of notice, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) otherwise, would result be in a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as which any of the date hereof Caravelle Companies is or will be a party or by which its assets are bound.
(d) Since October 31, 2021, none of the Caravelle Companies has declared or paid any dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock or other equity interests or made any loans or advances to any Person, other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary ordinary advances to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)employees for travel expenses.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pacifico Acquisition Corp.), Merger Agreement (Pacifico Acquisition Corp.)
Material Contracts. (a) Section 3.13(a) Set forth in Schedule 10.10 is a true and correct list of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below all plans, contracts or understandings providing for bonuses, pensions, options, deferred compensation, retirement payments, royalty payments, profit sharing or similar understandings with respect to whichany present or former officer, as of the date of this Agreementdirector or consultant, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease contract or agreement under which the aggregate annual rental payments do not exceed $500,000;
with any labor union, (iii) any Contract under which contract for the Company future purchase, acquisition or its Subsidiaries is lessor sale of products or permits any third party rights to hold products or operateperformance of services over a period of more than three months from the date hereof not made in the ordinary course of business, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint ventureall leases of real property, profit-sharingincluding all amendments and modifications, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, contract containing covenants limiting the freedom of Limco or any of the Company or its Limco 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
person; and (vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (every other than the Company or a Subsidiary) or pursuant contract to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company Limco or any of its Subsidiaries is a party which could reasonably be expected to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) in annual payments by or to Limco or from the Company or any of its Subsidiaries in excess of Two Hundred Thousand Dollars ($300,000 200,000) or (B) aggregate cumulative payments by or to or from any of the Company or its Limco Subsidiaries in excess of Two Hundred Thousand Dollars ($1,500,000 over 200,000), except for contracts entered into in the life ordinary course of the agreement and, in each case, that is not business which are terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
notice by either party thereto without penalty or liability (i) Each collectively, “Material Contract Contracts”). Limco heretofore has delivered or made available to Calavo true and correct copies of all Material Contracts. Neither Limco nor any of its Subsidiaries is valid and binding on the Company in default or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretobreach, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that or shall occur by reason of the transactions contemplated herein which would constitute a default or breach, where such default or breach would entitle another party thereto to accelerate or terminate such Material Contract or otherwise impose a material penalty or forfeiture thereunder (whether with or without due notice or notice, lapse of time or both) would result in the happening or occurrence of any other event), under any Material Contract. All Material Contracts are valid and binding agreements, and to the knowledge of Limco, there are no facts or circumstances which make a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, any party thereto likely to occur subsequent to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Limoneira CO), Stock Purchase Agreement (Calavo Growers Inc)
Material Contracts. (a) Except as set forth in Section 3.13(a3.9(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichLetter, as of the date hereof, neither of this Agreement, the Company or nor any of its Subsidiaries is a party to or bound by which they are bound, any: (i) contract (other than this Agreement or a Company Benefit Plan) that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC; (ii) indenture, and credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or agreement providing for Indebtedness in excess of $10,000,000; (iii) written contract (other than this Agreement) for the sale of any of its assets after the date hereof (other than sales of product in the ordinary course of business); (iv) collective bargaining agreement; (v) written contract that are not expired contains a put, call, right of first refusal or have not been terminated and not including any Contracts similar right pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are any of its Subsidiaries would be required to be set forth on Section 3.13(apurchase or sell, as applicable, any equity interests of any Person; (vi) settlement agreement or similar agreement with a Governmental Entity or Order to which the Company or any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries which is material; (vii) contract providing for indemnification (including any obligations to advance funds for expenses) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent current or its agents former directors or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money officers of the Company or any of its Subsidiaries Subsidiaries; or to the placing of a Lien (viii) other contract (other than a Permitted Lien) on this Agreement, purchase orders for the purchase of inventory or agreements between the Company and any material assets of its wholly owned Subsidiaries or properties between any of the Company or its Company’s wholly owned Subsidiaries;
(ii) any Contract under which the Company or and its Subsidiaries are obligated to make or receive payments in the future in excess of $10,000,000 per annum or $20,000,000 during the life of the contract. Each such contract described in clauses (i)-(viii) is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;referred to herein as a “Material Contract.”
(iiib) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do Except as would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Material Adverse Effect, or other investment in, any Person;
(ixi) any Contract required to be disclosed on Section 3.19 of neither the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or nor any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; is (and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Knowledge of the Company’s Knowledge, no other party is) in default under any Material Contract, (ii) each of the counterparties thereto, and Material Contracts is in full force and effect effect, and is the valid, binding and enforceable in accordance with its terms against obligation of the Company or and its Subsidiaries andSubsidiaries, and to the Knowledge of the Company’s Knowledge, of the counterparties thereto other parties thereto, except that (x) such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting generally the enforcement of creditors’ rights generally and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equity)the court before which any proceeding therefor may be brought, (iiiii) the Company or and its Subsidiaries have performed all respective material obligations required to be performed by them to date under the Material Contracts, are not and no circumstance exists, which (with or without the lapse of time or the giving of notice, or both) would cause them to be, in breach thereunder and (iv) neither the Company nor any of its Subsidiaries has received any notice of termination with respect to, and, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default underno party has threatened to terminate, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 2 contracts
Samples: Merger Agreement (Berkshire Hathaway Inc), Merger Agreement (LUBRIZOL Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents or to any forms, reports or documents filed with the SEC subsequent to the date hereof, neither the Company nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating coal supply agreement, coal transportation agreement, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement that (A) is subject to Indebtedness for borrowed money profit-sharing arrangements where the amount required to be shared with a third party could reasonably be expected to exceed $100 million over the life of the transaction, (B) contains “take or pay,” “liquidated damages” or “termination, closeout or liquidation” provisions associated with a transaction with a notional amount of $500 million or more or (C) creates actual indebtedness of the Company or its Subsidiaries or results in imputed indebtedness to the placing Company as assigned by Standard & Poor’s or Xxxxx’x in an amount greater than $100 million (using customary discounting); provided, for the purposes of this Section 4.21(a)(i), any imputed indebtedness amount associated with a Lien (other than a Permitted Lien) on any material assets or properties of physical power transaction entered into by the Company or any of its SubsidiariesSubsidiaries (the “Company Power Purchaser”) shall be net of expected independent system operator (“ISO”) revenues related to the capacity rights and other related energy products assigned to the Company Power Purchaser in such transaction for the years in which such capacity or other related energy products have been sold prior to the execution of such transaction in a forward ISO capacity auction; provided, however, such netting only shall occur with respect to a power transaction if the transaction (i) specifies the generation unit which will be the source of the power, capacity and other related energy products delivered to the Company Power Purchaser and (ii) assigns the rights to the ISO revenues for such capacity or other related energy products in such years to the Company Power Purchaser;
(ii) any Contract under which imposing any material restriction on the right or ability of the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property to (other than real property), owned by A) compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits acquire or purports to limit, in any material respect, the freedom dispose of the Company securities of another Person or its Subsidiaries to (C) engage or compete in any line of business or with any Person or in any geographic area or that would so limit contains restrictions on pricing or purport exclusivity or non-solicitation provisions with respect to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;customers; or
(viiii) any Contract requiring any future capital commitment with an aggregate principal amount, or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in providing for an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryaggregate obligation, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person 50 million (A) pursuant to which the Company or its Subsidiaries (or Parent or evidencing any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) credit facility of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to guaranteeing obligations for borrowed money or from the Company or its Subsidiaries in excess other obligations of $1,500,000 over the life a third party other than any Subsidiary. All Contracts of the agreement andtypes referred to in clauses (i), (ii) and (iii) in each case, this Section 4.21(a) and any Contract that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material a material Contract is valid and binding on the Company or its Subsidiaries, required to be filed as applicable, an exhibit to the Company’s KnowledgeAnnual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of the SEC are referred to herein as “Company Material Contracts.”
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to, individually or in the counterparties aggregate, have a material impact on the Company. To the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to, individually or in the aggregate, have a material impact on the Company. Except as would not reasonably be expected to, individually or in the aggregate, have a material impact on the Company, each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 2 contracts
Samples: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Material Contracts. (a) Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule contains lists all of the following Contracts to which any Acquired Company is a listing party or to which Seller or any of all its Affiliates is a party that is a Shared Contract or primarily relates to the Business (indicating with an asterisk (*) any such Contracts described to which Seller or any of its Affiliates (other than the Acquired Companies) is a party) and that are in clauses (i) through (xiii) below to which, effect and not entirely fulfilled or performed as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, Agreement (other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Plans) (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule, collectively, the “Material Contracts”). True; provided that (x) order forms, correct purchase orders, statements of work and complete copies (y) any Contracts of the Contracts type described in Section 4.8(a)(iii), in each case, need not be listed on Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule have previously been made available to Parent or its agents or representatives(the Contracts described in clauses (x) and (y), together with all amendments thereto):the “Specified Material Contracts”), but shall otherwise constitute Material Contracts hereunder:
(i) any Contract with a Key Customer;
(ii) any Contract with a Key Supplier;
(iii) Contracts that (A) involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in the prior twelve (12) months or (B) are reasonably expected to involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in any calendar year period;
(iv) any Contract that requires Seller or any of its Subsidiaries (including the Acquired Companies) to deal exclusively with a third party in connection with the sale or purchase of any product or service or geographic area;
(v) any Contract that contains (A) “most favored nation”, first refusal, right of first negotiation, first offer provisions or similar preferential terms or (B) take-or-pay or similar minimum purchase requirements, in each case, in favor of any other Person;
(vi) any Contract that relates to an acquisition, lease or divestiture of the equity, assets or property or business of any Person (whether by merger, sale of stock or other equity, sale of assets or otherwise) (A) with a purchase price in excess of $3,000,000, (B) that is material to the operation of the Business, taken as a whole or (C) that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole;
(vii) any Contract relating to Indebtedness for borrowed money of the Company Acquired Companies or its Subsidiaries or with respect to the placing of a Lien Business;
(viii) any Contract that creates any Encumbrance (other than a any Permitted LienEncumbrance) on upon any Owned Real Property, any Leased Real Property or any material assets or properties asset of the any Acquired Company or its Subsidiariesthe Business;
(iiix) any Contract under which that is a material IP Contract;
(x) any Shared Contract;
(xi) any Government Contract involving aggregate revenue of the Business in excess of $3,000,000 for the twelve (12) month period ended December 31, 2023;
(xii) any Contract that provides for any joint venture, partnership, collaboration or other arrangement involving a sharing of profits or losses of any Acquired Company with any Person;
(xiii) any Contract limiting or restraining (or purporting to limit or restrain) in any material respect Seller or any of its Subsidiaries is lessee (including the Acquired Companies) or the Business from (A) competing with any Person in any market or geographic area or in any business, (B) engaging in any type of business or holds or operates(C) acquiring any entity, in each case, that relates to or affects the Business or any tangible property of the Acquired Companies;
(xiv) any Contract involving a loan (other than real propertytransactions on credit in the ordinary course of business) or advance to (other than advances to any Business Employee extended in the ordinary course of business), owned by or investment in, any other PersonPerson or any Contract relating to the making of any such loan, except for any lease advance or agreement under which the aggregate annual rental payments do not exceed $500,000investment;
(iiixv) any Contract under which the Company involving any actual or its Subsidiaries is lessor of threatened Proceeding or permits any third party to hold other dispute (A)(1) entered into since January 1, 2021 and (2) that has involved or operate, will involve payment in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries an amount in excess of $1,000,000 over the life 250,000 (net of the Contract third-party insurance coverage) or (B) that contains ongoing material obligations, including obligations to pay amounts, individually or in the aggregate, in excess of $500,000 (net of third-party insurance coverage and excluding compliance with confidentiality, non-disparagement, and other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractssimilar customary provisions);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vixvi) any Contract requiring any future capital commitment or capital expenditure (or series of the capital expenditures) by the Company Seller or any of its Subsidiaries (including the Acquired Companies) in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life respect of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case Business in excess of $200,0003,000,000;
(viiixvii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment that contains obligations with respect to any Person outside contingent payment of any type (including under any purchase price adjustment, earn-out, deferred payment or similar provision) in excess of $3,000,000;
(xviii) any Real Property Lease that is material to the Business;
(xix) any supply or tolling Contract for the supply of raw materials, intermediates or finished goods for which there is no reasonably available alternative source as of the Ordinary Course date of Business orthis Agreement; and
(xx) any Contract that contains any material indemnification or contribution right or obligation, other than any such right or obligation (1) incurred in the ordinary course of business with any customer or supplier, (2) that provides for any type of customary director and officer indemnification arrangement or (3) in respect of Retained Liabilities.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Material Adverse Effect, or other investment in, any Person;
(ixi) any Contract required to be disclosed on Section 3.19 each of the Company Disclosure Schedule;
Material Contracts is in full force and effect, (xii) there exists no default or breach under any Contract with such Material Contracts by any Person (A) pursuant to which the Acquired Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company Seller or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableor, to the CompanySeller’s Knowledge, the counterparties theretoany other party to such Material Contracts, and is in full force and effect and enforceable in accordance (iii) there exists no event or circumstance with its terms against the respect to any Acquired Company or Seller or any of its Subsidiaries andor, to the CompanySeller’s Knowledge, the counterparties thereto (subject any other party to applicable bankruptcysuch Material Contracts, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would create a default or breach under any of the Material Contracts or result in a termination right thereof or would cause or permit the acceleration of or other changes of or to any material breach of, right or default under, obligation or the loss of any Material Contract by the Company or its Subsidiaries material benefit thereunder and (iv) there exists no actual or, to the CompanySeller’s Knowledge, the counterparties theretothreatened termination or cancellation of any Material Contract. The Company Seller has made available to Parent true Purchaser a complete and complete copies accurate copy of all each Material Contracts Contract, other than any Specified Material Contract, that is in effect as of the date hereof of this Agreement (other than purchase orderstogether with all legally binding amendments, invoicesmodifications, and similar confirmatory schedules or administrative documents that are ancillary supplements thereto). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, none of the Acquired Companies or, to the main contractual relationship between extent related to the parties Business, Seller or any of its other Affiliates has received any written or, to a particular Seller’s Knowledge, oral notice under any Material Contract that any counterparty to any Material Contract intends to terminate any such Material Contracts or is repudiating, not renewing, modifying, or accelerating any material obligation under any Material Contract or group of Contracts and that, in each case, that it intends to do not contain so. There have been no material disputes under any material executory or continuing terms, conditions, obligations or rights)Material Contract during the period beginning three (3) years prior to the date hereof.
Appears in 2 contracts
Samples: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
Material Contracts. (a) Section 3.13(aSchedule 3.16(a) sets forth a list of all Contracts (other than purchase, sale or service orders executed in the ordinary course of business) of the Company Disclosure Schedule contains a listing of all Contracts type described in clauses (i) through (xiii) below to which, as of which the Business Entities are a party that are in effect on the date of this Agreement, the Company or its Subsidiaries Agreement (each contract that is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulelisted in Schedule 3.16(a), the being a “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness agreement for borrowed money the purchase by any Business Entity of metal or metal additives that has a remaining term of more than one year and is not terminable without penalty with ninety (90) days’ notice and requires annual payments by the Company Business Entities of $5,000,000 or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesmore;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property agreement (other than real property), owned for the purchase of metal or metal additives) for the purchase or sale by any other PersonBusiness Entity of materials, except for any lease supplies, goods, services, equipment or agreement under which assets that has a remaining term of more than one year and is not terminable without penalty within ninety (90) days’ notice and requires annual payments to, or receipts by, the aggregate annual rental payments do not exceed Business Entities of $500,0002,500,000 or more;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each caseother than exclusive distribution agreements, any tangible property (other than real property), owned agreement that contains noncompetition covenants that prohibit the Business Entities from freely engaging in any business or controlled by the Company in any geographic territory or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000market;
(iv) any (A) joint venturemortgage, profit-sharingindenture, partnershipnote, collaboration, co-promotion, commercialization bond or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected other agreement relating to require (based on any occurrence, development, activity or event contemplated Indebtedness incurred by such Contract), aggregate payments to or from the Company or its Subsidiaries Business Entities with an outstanding principal amount in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)250,000;
(v) any Contract that (A) limits partnership, joint venture, franchise or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or other similar equity investment agreements with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingthan a Business Entity;
(vi) any Contract agreement granting any of the Business Entities the right to use, exploit or practice any Intellectual Property owned by third parties (other than COTS Licenses) requiring any future capital commitment or capital expenditure (or series of capital expenditures) annual payments by the Company Business Entities of $500,000 or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementmore;
(vii) except for transactions between or among Business Entities, any Contract requiring agreement entered during the Company three-year period prior to the date of this Agreement relating to the acquisition or its Subsidiaries to guarantee the Liabilities disposition of any Person business (other than the Company whether by merger, sale of stock, sale of assets or a Subsidiaryotherwise) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess having an aggregate purchase price of $200,0005,000,000 or more;
(viii) an employment agreement or employment contract between Parent, Aleris International or any Contract under Business Entity in which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment amount of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount base salary is in excess of $200,000 or made any capital contribution to, or other investment in, any Person165,000;
(ix) any Contract required to be disclosed on Section 3.19 with any Governmental Entity for the sale of the Company Disclosure Schedulegoods or services involving annual payments in excess of $500,000;
(x) any lease, sublease or similar Contract (including sale-leaseback arrangements) for personal property with any Person person involving annual payments in excess of $500,000 and under which (A) pursuant to which the Company any Seller or its Subsidiaries (Business Entity is lessee of, or Parent holds or uses, any of its Affiliates after the Closing) is or may be required to pay milestonesmachinery, royalties equipment, vehicle or other contingent payments based on tangible personal property owned by any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events person or (B) under which the Company any Seller or its Subsidiaries grants to Business Entity is a lessor or sublessor of, or makes available for use by any Person Person, any right of first refusal, right of first negotiation, option to purchase, option to license tangible personal property owned or any other similar rights with respect to any material Company Product leased by such Seller or any material Intellectual PropertyBusiness Entity;
(xi) any Contract for entered into in connection with the disposition settlement or other resolution of any portion of Action pursuant to which any Seller (solely in connection with the assets Business) or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of Business Entity has any other Person (ongoing performance obligations, other than acquisitions Contracts entered into in connection with the settlement or dispositions made in the Ordinary Course resolution of Business), severance or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationworkers’ compensation matters;
(xii) any settlement, conciliation Contract granting the other party to such Contract or similar Contract a third party “most favored nation” status that has a remaining term of more than one year and is not terminable without penalty with ninety (A90) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)days’ notice; andor
(xiii) each collective bargaining any agreement associated with hxxxxx, derivatives or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andinstruments, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticehaving a termination value in excess of $1,000,000.
(ib) Sellers have made available to Buyer accurate and complete copies of each Material Contract. Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is enforceable by the Business Entities, as applicable, in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other except as limited by Laws affecting generally the enforcement of creditors’ rights and subject to generally, by general equitable principles or by the discretion of equityany Governmental Authority before which any Action seeking enforcement may be brought. Except as set forth in Schedule 3.16(b)(ii), neither Parent nor Sellers have received written notice of any termination, cancellation or threatened termination or cancellation by any party to any Material Contract.
(iic) None of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto Business Entities are not in default of in any material breach ofrespect, or have received any written notice of any default underor event that, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time time, or both) , would result constitute a default in a any material breach of, or default under, respect by the Business Entities under any Material Contract by Contract. To the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as knowledge of the date hereof (Sellers, no other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties party to a particular Material Contract or group of Contracts and that, is in each case, do not contain default in any material executory or continuing terms, conditions, obligations or rights)respect of such Material Contract.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Material Contracts. (a) Except for this Agreement, for Contracts filed as exhibits to the Company Reports or as disclosed in Section 3.13(a3.15(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, Agreement (i) neither the Company or nor any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Planto, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(aii) none of the Company Disclosure ScheduleCompany, the “Material Contracts”). Trueany of its Subsidiaries, correct and complete copies or any of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent their respective properties, assets or its agents or representatives, together with all amendments thereto):rights is bound by:
(i) any Contract relating that is or would be required to Indebtedness for borrowed money of be filed by the Company as a “material contract” with the SEC pursuant to Item 601(b)(10) of Regulation S-K or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of disclosed by the Company or its Subsidiarieson Form 8-K;
(ii) any Contract under which limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture (excluding any Teaming Agreement) that is material to the business of the Company or and its Subsidiaries is lessee of or holds or operatesSubsidiaries, in each casetaken as a whole, any tangible property (other than real property)any such limited liability company, owned by any other Person, except for any lease partnership or agreement under which joint venture that is a Subsidiary of the aggregate annual rental payments do not exceed $500,000Company;
(iii) any Contract under which (other than among consolidated Subsidiaries of the Company or its Subsidiaries is lessor of capital or permits operating leases) relating to (x) indebtedness for borrowed money or (y) any third party to hold interest rate, currency or operate, in each case, any tangible property (other than real property), owned commodity derivatives or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000hedging transactions;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vTeaming Agreement) any Contract that (A) limits or purports to limit, in any material respect, limit the freedom right of the Company or any of its Subsidiaries to engage or compete in any line of business or to compete with any Person or operate in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarylocation, in each case in excess of $200,000;
(viii) any Contract under which respect material to the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or and its Subsidiaries or for Subsidiaries, taken as a whole;
(v) any Contract entered into since the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect Applicable Date relating to an acquisition, divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including payment, indemnification, purchase price adjustment, “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentobligations) of the Company or any of its Subsidiaries that are still in effect and would reasonably be expected to make any payment or incur any Liability as a result of the consummation of the transactions contemplated in payments by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess of $300,000 or 250,000;
(Bvi) aggregate payments to or from any Contract that obligates the Company to make any capital commitment or its Subsidiaries expenditure (including pursuant to any joint venture) in excess of $1,500,000 over the life 1,000,000;
(vii) any individual Contract with an employee of the agreement and, in each case, that is not terminable by the applicable the Company or any of its Subsidiaries that provides for compensation in any fiscal year that is equal to or greater than $400,000 (excluding any compensation related to expatriate costs and expenses, such as expatriate allowance, expatriate bonus, assignment completion bonus, post differential/hardship pay, post or cost of living allowance, education allowance, housing or living quarters allowance, relocation expenses, repatriation allowance, automobile allowance, language courses and orientation, travel costs, cost for tax assistance and preparation, and temporary housing costs), other than any offer letter or similar employment arrangement that can be terminated without penalty upon less express liability post-termination other than thirty (30) days’ prior written notice.severance paid in the ordinary course of business; and
(iviii) Each Material any Contract is valid and binding on that prohibits the pledging of capital stock of the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against any Subsidiary of the Company or its Subsidiaries and, to prohibits the issuance of guarantees by any Subsidiary of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Merger Agreement (Providence Equity Partners VI L P), Merger Agreement (Sra International Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on in Section 3.13(a4.22(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of date hereof, neither the Company Disclosure Schedule have previously been made available nor any of its Subsidiaries is party to Parent or its agents or representatives, together with all amendments thereto):bound by any Contract:
(i) 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 1933 Act;
(ii) that is an employment, independent contractor, consulting, severance or similar agreement with any Contract relating individual (or such individual’s alter ego entity) under which the Company or any of its Subsidiaries is or could become obligated to Indebtedness for borrowed money provide a base salary or annual base consulting fees in excess of $750,000;
(iii) that (or, together with additional related Contracts with the same Person or its Affiliates) (A) requires the payment or receipt of amounts by the Company or any of its Subsidiaries of more than $250,000,000 in the calendar year ended December 31, 2022 or reasonably expected in any subsequent calendar year, in each case other than Oil and Gas Leases and spot sales of Hydrocarbons on market terms in the ordinary course, or (B) is material to the Company and its Subsidiaries, taken as a whole, and, in the case of clause (B), cannot be cancelled at any time by the Company or its applicable Subsidiary without penalty or further payment on no more than ninety (90) days’ notice;
(iv) that is a material partnership, strategic alliance or joint venture agreement, other than customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or its Subsidiaries or to the placing any of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(iiv) any that provides for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (including properties) or capital stock (other than acquisitions or dispositions of Hydrocarbons or inventory and raw materials and supplies in the ordinary course of business) (A) that is pending for aggregate consideration under such Contract under in excess of $50,000,000 or (B) pursuant to which the Company or its Subsidiaries is lessee has continuing material obligations including “earn-out” or other contingent payment obligations;
(vi) providing for material indemnification by the Company or any its Subsidiaries, other than indemnification obligations in (A) customary joint operating agreements in the ordinary course of business, and (B) commercial agreements in the ordinary course of business;
(vii) that contains any “most favored nation” or holds most favored customer provision with respect to any material obligation or operatesany material preferential right or material rights of first or last offer, negotiation or refusal, in each case, any tangible property (other than real property)such provisions in favor of the Company or any of its Subsidiaries or pursuant to customary royalty pricing provisions in Oil and Gas Leases or customary preferential rights in joint operating agreements, owned by unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000of its Subsidiaries;
(iiiviii) any Contract under other than the Convertible Notes, that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries is lessor could be required to purchase or sell, as applicable, any assets or any equity interests of or permits any third party to hold or operatePerson (excluding, in each caserespect of the foregoing, any tangible property (other than real property), owned or controlled by agreements between the Company or and its wholly-owned Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vix) any Contract that (A) limits materially restricts or purports to limit, in any material respect, materially restrict the freedom ability of the Company or any of its Subsidiaries Affiliates to engage compete with, or compete to provide services in any line of business or with any Person or in any geographic area or market segment, in each case that would so limit be applicable to the Surviving Corporation or purport to limit, in any material respect, the operations of its Subsidiaries or Parent or any of its Affiliates after Subsidiaries following the ClosingEffective Time;
(x) that is a Collective Bargaining Agreement;
(xi) containing any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever that is material to the Company and its Subsidiaries, taken as a whole;
(Bxii) contains (A) with (1) any exclusivitybeneficial owner (as defined in Rule 13d-3 under the 1934 Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries who has filed a Schedule 13D or Schedule 13G under the 1934 Act (or, “most favored nation” or similar provisionsto the Company’s Knowledge, obligations or restrictions is required to make such a filing) or (C2) contains any other provisions restricting director or purporting to restrict the ability executive officer of the Company or its Subsidiaries to sell(other than any employment agreements, manufactureEmployee Plans or other Contracts providing exclusively for compensation, developbenefits, commercialize, test equity awards or research products, directly or indirectly through third partiescustomary indemnification), or (B) that is required to solicit be disclosed under Item 404 of Regulation S-K promulgated under the 1933 Act;
(xiii) that (A) evidences Indebtedness for borrowed money of the Company or any potential employee Subsidiary of the Company (committed or customeroutstanding) in excess of $100,000,000, other than agreements solely between or among the Company and its Subsidiaries, (B) evidences a capitalized lease obligation in each case, excess of $100,000,000 that is required to be classified as a balance sheet liability of the Company in accordance with GAAP or (C) restricts the payment of dividends or other distribution of assets by any material respect of the Company or that would so limit or purports to limit, in any material respect, Parent its Subsidiaries;
(xiv) requiring future capital expenditures by the Company or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made 250,000,000 other than any capital contribution to, or other investment in, any Person;
(ixexpenditure contemplated by Section 6.01(e) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bxv) under which the Company or any of its Subsidiaries (A) grants to any Person any right of first refusalright, right of first negotiation, option to purchase, option to license or any other similar rights covenant not to sue with respect to any material Company Product Intellectual Property (other than non-exclusive licenses granted to customers or vendors in the ordinary course of business) or (B) obtains any right, license or covenant not to be sued with respect to any material Intellectual Property;
(xi) Property owned by any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person third party (other than acquisitions or dispositions made in the Ordinary Course of Business), or under licenses for commercial off-the-shelf software which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, are generally available on non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingdiscriminatory pricing terms); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) that is the subject of any employment or consulting Contract with severance, change in control, retention or similar arrangements, Action individually that will is reasonably expected to result in any obligation payments by the Company in excess of $25,000,000 and under which there are outstanding obligations (absolute or contingentincluding settlement agreements) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothSubsidiaries; andor
(xvii) any other Contract the performance of which requires either binding commitment (Aorally or in writing) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or any of its Subsidiaries or, to enter into any of the Company’s Knowledge, the counterparties thereto. foregoing.
(b) The Company has made available to Parent a true and complete copies copy of all Material Contracts each Contract listed or required to be listed in Section 4.22(a) of the Company Disclosure Schedule (such Contracts, together with any Contract to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date hereof that would be required to be listed in Section 4.22(a) of the Company Disclosure Schedule if in effect as of the date hereof hereof, the “Material Contracts” and each, a “Material Contract”). Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (other than purchase ordersi) each of the Material Contracts is valid, invoicesbinding obligation of the Company, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Knowledge of the parties to a particular Contract or group of Contracts Company, each other party thereto, and thatin full force and effect, in each casecase subject to bankruptcy, do not contain insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law), and (ii) since the Applicable Date, neither the Company nor any material executory of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, has breached or continuing termsviolated any provision of, conditionsor taken or failed to take any act which, obligations with or rights)without notice, lapse of time, or both, would constitute a breach or default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract, except for breaches, violations or defaults that have been cured.
Appears in 2 contracts
Samples: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
Material Contracts. (a) Except as set forth in Section 3.13(a) 5.15 of the Company Seller Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below or as filed as exhibits to which, as of the Seller SEC Reports prior to the date of this Agreement, the Company or and except for this Agreement, neither Seller nor any of its Subsidiaries is a party to or is bound by which they are boundany contract, other than a Company Benefit Planarrangement, and that are not expired commitment or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
understanding (i) any Contract relating to Indebtedness for borrowed money that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
Exchange Act), (ii) which limits the ability of Seller or any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to compete or engage or compete in any line of business or with any Person or to solicit business in any area or that would so limit or purport to limitgeographic area, in any material respect, the operations of Parent (iii) which provides for exclusivity by Seller or any of its Affiliates after the ClosingSubsidiaries with respect to any material products or services sold or purchased by Seller or any of its Subsidiaries, (Biv) contains that by its terms would prohibit or materially delay the consummation of the Offer, the Merger or any exclusivityof the other transactions contemplated by this Agreement, “most favored nation” or similar provisions, obligations or restrictions or (Cv) contains with any other provisions restricting or purporting to restrict the ability customer of the Company Seller or its Subsidiaries which is expected to sellrelate to more than $1,000,000 in annual revenue for the fiscal year ending September 30, manufacture2008. Each contract, developarrangement, commercializecommitment or understanding of the type described above in this Section 5.15, test whether or research productsnot set forth in Section 5.15 of the Seller Disclosure Schedule, directly is referred to herein as a “Seller Contract.” All of the Seller Contracts are valid and binding on Seller and each of its Subsidiaries that is a party thereto and, to Seller’s knowledge, each other party thereto, as applicable, and in full force and effect, subject to applicable bankruptcy, insolvency, moratorium or indirectly through third partiesother similar Laws relating to creditors’ rights and general principles of equity. Neither Seller nor any of its Subsidiaries has, or and to solicit any potential employee or customerthe knowledge of Seller, in each casenone of the other parties thereto have, violated in any material respect any provision of, or that committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would so limit or purports to limit, in any constitute a material respect, Parent or any of its Affiliates after default under the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities provisions of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiarySeller Contract, except in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orfor those violations and defaults which, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required would not reasonably be expected to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or a Seller Material Adverse Effect and neither Seller nor any of its Subsidiaries to make has received written notice of any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeforegoing.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Merger Agreement (BMC Software Inc), Merger Agreement (BladeLogic, Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as As of the date hereof, neither Utah nor any of this Agreement, the Company or its Subsidiaries is a party are parties to or otherwise bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any subject to (Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulefollowing types, together with the Utah Licenses, the “Utah Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of such Contract solely between the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each caseUtah Entities, any tangible property (other than real property)partnership, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharingstrategic alliance, partnership, collaboration, co-promotion, commercialization license or research or and development Contract, or similar project Contract, in each case, which requiresis material to Utah and its Subsidiaries (taken as a whole);
(ii) Contracts containing (A) a covenant materially restricting the ability of Utah or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers or (B) a provision granting the other party exclusivity or similar rights, in each case of clauses (A) and (B), that would, after giving effect to the Combination, materially impact the businesses of Utah and its Subsidiaries (taken as a whole);
(iii) any acquisition or divestiture Contract or licensing agreement that contains continuing financial covenants, indemnities or other payment obligations (including “earn-out” or other contingent payment obligations but not including royalty payments) that would reasonably be expected to require (based on result in the receipt or making by Utah or any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or of its Subsidiaries of future payments in excess of $1,000,000 over the life 100 million;
(iv) each Contract relating to outstanding Indebtedness of the Contract Utah or its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in each case in a principal amount in excess of $100 million other than (A) Contracts solely among Utah and any wholly owned Utah Subsidiary or a guarantee by Utah or any Utah Subsidiary of Indebtedness of a Utah Subsidiary and (B) other Contract financial guarantees entered into in the ordinary course of business consistent with respect to material Company Licensed Intellectual Property past practice not exceeding $100 million, individually or in the aggregate (other than any Non-Scheduled Contractssurety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon);
(v) any Contract that (AUtah Leases set forth on Section 7.18(b) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingUtah Disclosure Schedule;
(vi) any Contract requiring shareholders, investors’ rights, registration rights or similar agreement or arrangement of Utah or any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementSubsidiaries;
(vii) any Contract requiring that relates to any swap, forward, futures, or other similar derivative transaction with a notional value as of the Company or its Subsidiaries to guarantee the Liabilities date of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case this Agreement in excess of $200,000100 million;
(viii) any Contract under involving the settlement of any claims, actions, suits or proceedings or threatened claims, actions, suits or proceedings (or series of related claims, actions, suits or proceedings) pursuant to which the Company Utah or any of its Subsidiaries has, directly or indirectly, made or agreed (A) is required to make any loan, advance, or assignment of payment to any Person outside of pay after the Ordinary Course of Business or, individually or in the aggregate, in an amount date hereof consideration in excess of $200,000 50 million or made (B) is subject to material monitoring or reporting obligations to any capital contribution to, or other investment in, any PersonPerson outside the ordinary course of business;
(ix) any Contract required with any Governmental Authority that is material to be disclosed on Section 3.19 Utah and its Subsidiaries, taken as a whole, excluding any sales, supply, manufacturing or services agreements entered into in the ordinary course of the Company Disclosure Schedule;business and tolling agreements entered into in connection with investigations by any Governmental Authority; and
(x) any Contract with not otherwise described in any Person (Aother subsection of this Section 7.11(a) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may that would be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or be filed by Utah as a “material contract” (Bas such term is defined in Item 601(b)(10) under which of Regulation S-K of the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;SEC).
(xib) any Utah has made available to Pluto true, complete and correct copies of each Utah Material Contract for described in Section 7.11(a)(i) through Section 7.11(a)(x) in effect on the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar date hereof. Each Utah Material Contract (A) requiring monetary payments by the Company except those which may be canceled, rescinded, terminated or its Subsidiaries not renewed after the date of this Agreement, (Bhereof in accordance with their terms) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company Utah or its Subsidiaries, as applicable, and, to the Company’s Knowledgeknowledge of Utah, the counterparties counterparty thereto, and is in full force and effect and enforceable in accordance with its terms against effect, subject to the Company or Remedies Exception. Neither Utah nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach of, or default under, any Utah Material Contract and (iii) no event has occurred that (with to which it is a party, except for such breaches or without due notice defaults as would not reasonably be expected to have, individually or lapse in the aggregate, a Utah Material Adverse Effect. To the knowledge of time or both) would result in a material breach ofUtah, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (hereof, no other than purchase ordersparty to any Utah Material Contract is in breach of or default under the terms of any Utah Material Contract where such breach or default has had or would reasonably be expected to have, invoicesindividually or in the aggregate, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Utah Material Adverse Effect.
Appears in 2 contracts
Samples: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Material Contracts. (a) Section 3.13(a3.18(a) of the Company Disclosure Schedule contains a listing set forth an accurate and complete list of all of the following types of Contracts described in clauses (i) through (xiii) below to which, which any Group Company is a party as of the date of this Agreement, the Company or its Subsidiaries is a party or by excluding in each case, Contracts under which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the such Group Company has with no material outstanding rights or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContracts, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating that would be required to Indebtedness for borrowed money be filed by the Company pursuant to Item 4 of the Company or its Subsidiaries or Instructions to Exhibits of Form 20-F under the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act;
(ii) any Contract under which relating to (A) the Company formation, creation, operation, management or its Subsidiaries is lessee control of a partnership, joint venture, limited liability company or holds similar arrangement with any Group Companies making investment in the amount of more than US$5,000,000, (B) strategic cooperation or operatespartnership arrangements, in each caseor (C) other similar agreements outside the ordinary course of business involving a sharing of profits, any tangible property (other than real property)losses, owned costs or liabilities by any other Person, except for any lease or agreement under which Group Company in an amount material to the aggregate annual rental payments do not exceed $500,000Company;
(iii) any Contract under which involving a loan (other than accounts receivable in the ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company or and any of its Subsidiaries is lessor extended in the ordinary course of business), or permits investment in, any third party person other than a Group Company or any Contract relating to hold the making of any such loan, advance or operateinvestment, in each case, any tangible property (other than real property), owned or controlled by case only if material to the Company or its Subsidiaries, except for any lease or agreement under which financial status of the aggregate annual rental payments do not exceed $200,000Company;
(iv) any Contract involving Indebtedness of the Company or any of its Subsidiaries except for any Indebtedness (A) joint ventureas set forth in the consolidated financial statements of the Company and its Subsidiaries (including the notes thereto) included in the Company’s annual report on Form 20-F filed with the SEC on April 23, profit-sharing2021, partnership(B) incurred in the ordinary course of business consistent with past practice as of December 31, collaboration2020, co-promotion, commercialization (C) incurred pursuant to this Agreement or research or development Contractin connection with the Transactions, or similar Contract(D) to the knowledge of the Company, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries not in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)RMB20,000,000;
(v) any Contract that (Aincluding so called take-or-pay or keep-well agreements) limits under which any person (other than the Company or purports to limit, in any material respect, the freedom of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability Subsidiaries in excess of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingRMB10,000,000;
(vi) any Contract requiring granting or evidencing a Lien on any future capital commitment properties or capital expenditure (or series assets of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementSubsidiaries, other than a Permitted Encumbrances;
(vii) any financial advisory Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000RMB10,000,000;
(viii) any Contract under for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than RMB100,000,000 (by merger, purchase or sale of assets or stock or otherwise) or pursuant to which the Company or any of its Subsidiaries hashave continuing, directly or indirectlyindemnification, made or agreed to make any loanguarantee, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, “earn-out” or other investment in, any Personcontingent payment obligations;
(ix) any Contract required Contracts relating to be disclosed on Section 3.19 or in connection with any outstanding resolution or settlement of the Company Disclosure Scheduleany actual or threatened litigation, arbitration, claim or other dispute in excess of RMB10,000,000;
(x) any Contract with for the employment of any Person (A) pursuant to which officer, individual employee or other person by the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is Subsidiaries on a full-time or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license consulting basis or any other similar rights with respect to any material Company Product or any material Intellectual Propertyseverance agreements calling for payments in excess of RMB10,000,000 annually;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement competition Contract or other Contract with the Company that purports to limit, curtail or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result restrict in any obligation (absolute or contingent) material respect the ability of the Company or any of its Subsidiaries to make compete in any payment geographic area, industry or incur line of business that is material to the business of the Group Companies taken as a whole;
(xii) any Liability Contract that contains a put, call or similar right outside the ordinary course of business of the Company or 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 US$5,000,000;
(xiii) any Contract (other than Contracts granting Company Options) pursuant to which any other party has the right to terminate such Contract as a result of this Agreement or the consummation of the transactions contemplated Transactions, including the Merger, where (A) such Contract requires any payment in excess of RMB25,000,000 to be made by this Agreementthe Company and/or any of its Subsidiaries or (B) the value of the outstanding receivables due to the Company and/or its Subsidiaries under such Contract is in excess of RMB10,000,000;
(xiv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, termination (B) pledging of employment share capital of the Company or both; andany of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xv) any Contract providing for (A) a license, covenant not to sxx or other right granted by any person under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to sxx or other right granted by the Company or any of its Subsidiaries to any person under any Intellectual Property, other than agreements for off-the-shelf Software, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property in each case only if material to the Company;
(xvi) any material Contract outside the ordinary course of business of the Company or not on arm’s length terms between the Company or any of its Subsidiaries, on one hand, and any Affiliate or other entity in which any Group Company has a direct or indirect equity interest, or director, or executive officer, or any person beneficially owning five percent (5%) or more of the outstanding Equity Securities of any Group Company or any of their respective Affiliates (other than the Group Companies), or immediate family members or any of the respective Affiliates of such family members, on the other hand;
(xvii) any other Contract with a currently effective “standstill” restriction on any person with respect to the performance Company’s securities; or
(xviii) any Contract which have not been covered by subsections (i) through (xvii) that is outside the ordinary course of which requires either (A) annual payments to or from business and involves consideration of more than RMB10,000,000, in the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 aggregate, over the life remaining term of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticesuch Contract.
(b) Except as would not have a Company Material Adverse Effect, (i) Each each Material Contract is a legal, valid and binding on the Company or its Subsidiariesobligation of a Group Company, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable against the such Group Company in accordance with its terms terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not no counterparty, is or is alleged to be in material breach or violation of, or default under, any Material Contract and Contract; (iiiiv) to the knowledge of the Company, no person intends to terminate or cancel any Material Contract; (v) no event Group Company has occurred that (with or without due notice or lapse received any written claim of time or both) would result in a material breach of, or default under, under any such Material Contract by the Company or its Subsidiaries orand, to the Company’s Knowledgeknowledge, no fact or event exists that would give rise to any claim of default under any Material Contract; and (vi) neither the counterparties theretoexecution of this Agreement nor the consummation of any Transaction shall constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent Merger Sub true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 2 contracts
Samples: Merger Agreement (51job, Inc.), Merger Agreement (Yan Rick)
Material Contracts. (a) Section 3.13(aSchedule 3.11 contains an accurate description of all agreements, contracts, commitments, and other instruments and arrangements (whether written or oral) of the Company Disclosure Schedule contains a listing of all Contracts types described in clauses below (i) through by which the Companies or any of their assets, businesses, or operations receive benefits, or (xiiiii) below to which, as of which the date of this Agreement, the Company or its Subsidiaries is Companies are a party or by which they the Companies are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which insignificant contracts entered into in the Company has ordinary course of business consistent with no material outstanding or executory obligations or Liabilities past practice (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True):
(i) leases, licenses, permits, franchises, insurance policies, warranties, guarantees, Governmental Approvals, and other contracts concerning or relating to the Companies’ real property,
(ii) contracts for capital expenditures in excess of $50,000 each;
(iii) performance bonds, completion bonds, bid bonds, suretyship agreements and similar instruments;
(iv) joint venture, partnership, and similar contracts involving a sharing of profits and/or expenses;
(v) agreements providing for the leasing to or by the Companies of personal property;
(vi) Line Extension Agreements; and
(vii) agreements or instruments under which the Companies have acquired or hold their Water Rights; and
(b) Seller has delivered to Purchaser complete and correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativesall written Material Contracts, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ic) Each All Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is Contracts are in full force and effect and enforceable against each party thereto. To the Knowledge of Seller, except for an existing subcontractors claim and existing mechanics lien in accordance with its terms against the Company or its Subsidiaries andapproximate amount of $107,000.00, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are there does not in material breach of, or default under, exist under any Material Contract and (iii) no any event has occurred that (with of default or without due event or condition that, after notice or lapse of time or both) , would result in constitute a material breach ofviolation, breach, or event of default under, thereunder on the part of the Companies or any other party thereto. No consent of any third party is required under any Material Contract by as a result of or in connection with, and the Company or its Subsidiaries or, to the Company’s Knowledgeenforceability of any Material Contract will not be affected in any manner by, the counterparties thereto. The Company has made available to Parent true execution, delivery and complete copies performance of all Material Contracts in effect as this Agreement or the consummation of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)transactions contemplated hereby.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Global Water Resources, Inc.), Asset Purchase Agreement (Global Water Resources, Inc.)
Material Contracts. (a) Section 3.13(a) of Except as set forth on SCHEDULE 5.13 hereto, neither the Company Disclosure Schedule contains nor any Subsidiary is a listing of all Contracts described in clauses party to any (i) through (xiii) below to which, as material contract not made in the ordinary course of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
business; (ii) contract for the employment of any Contract under which the Company officer or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
employee; (iii) any Contract under which contract for the Company future purchase of materials, supplies, services, merchandise or its Subsidiaries is lessor equipment not capable of being fully performed or permits any third party to hold not terminable within a period of one year from the date hereof or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
excess of normal operating requirements; (iv) agreement for the sale or lease of any of its assets other than in the ordinary course of business; (Av) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization contract or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries commitment for capital expenditures in excess of $1,000,000 over the life 100,000; (vi) lease of the Contract machinery or equipment involving annual payments in excess of $100,000; (vii) loan agreement, promissory note issued by it, guarantee, subordination or similar type of agreement; (viii) stock option, retirement, severance, pension, bonus, profit sharing, group insurance, medical or other fringe benefit plan or program providing employee benefits; (ix) consulting agreement; (x) municipal or other governmental franchise agreements; (xi) agreement with a labor union or labor association; (xii) agreement providing for indemnification of any other parties; or (Bxiii) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, agreement restricting the freedom of the Company or 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 operations of Parent Company's or any of its Affiliates after the Closing, Subsidiaries' ability to conduct business generally (Bor any type of business) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any location. Complete and correct copies of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 such agreement have been furnished or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required available to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made Acquiror. Except as set forth in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableSCHEDULE 5.13 hereto, to the Company’s KnowledgeSeller's knowledge, all of the counterparties theretoforegoing agreements, leases, and is other documents are valid, binding and in full force and effect effect, and enforceable in accordance with its terms against the Company or and its Subsidiaries and, have performed all of the obligations required to the Company’s Knowledge, the counterparties thereto (subject be performed by them to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights date and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, default (or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or bothboth will be in default) under any of the agreements, leases, contracts or other documents to which any of then is a party listed on SCHEDULE 5.13, other than for those failures to perform and defaults which, in the aggregate, would not be reasonably likely to result in a material breach ofMaterial Adverse Effect. Except as set forth in SCHEDULE 5.13 hereto, or default underto the Seller's knowledge, any Material Contract by no party with whom the Company or its Subsidiaries ora Subsidiary has such a scheduled agreement is in default (or with notice of lapse of time or both will be in default) thereunder, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatwhich default, in each casethe aggregate, do not contain would be reasonably likely to result in a Material Adverse Effect. Except as disclosed herein or in SCHEDULE 5.13 hereto, neither the Company nor any Subsidiary is a party to any non-competition or similar agreement which restricts in any material executory or continuing terms, conditions, obligations or rights)way the current operation of their businesses taken as a whole.
Appears in 2 contracts
Samples: Merger Agreement (Universal Outdoor Holdings Inc), Merger Agreement (Universal Outdoor Holdings Inc)
Material Contracts. (a) Section 3.13(a4.09(a) of the Company Disclosure Schedule contains a listing of sets forth all Contracts described in clauses currently active: (i) through (xiii) below joint venture, partnership or similar Contracts entered into since April 1, 2014 to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) any of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent Company’s or any of its Affiliates after the ClosingSubsidiaries’ assets are subject to or bound; (ii) indemnification, (B) contains any exclusivityemployment, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement consulting or other Contract entered into since April 1, 2014 with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) executive officer of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated other than those Contracts entered into since April 1, 2014 that are terminable by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less on no more than thirty (30) days’ prior written notice.
notice without liability or financial obligation to the Company or any such Subsidiary; (iiii) Each Material any mortgages, indentures, guarantees, loans or credit agreements, security agreements or promissory notes relating to the borrowing of money, extension of credit or other indebtedness for borrowed money by the Company or any of its Subsidiaries, in each case for more than $50,000 individually or $250,000 in the aggregate, entered into since April 1, 2014; (iv) any Contract entered into since April 1, 2014 pursuant to which the Company or any of its Subsidiaries received or paid in excess of $187,500 during the eight (8) months ended on November 30, 2014; (v) any Contract entered into since April 1, 2014 under which the Company or any of its Subsidiaries is valid and binding on the lessee or sublessee of, or holds or operates any real property or any personal property requiring payments of at least $250,000 during any twelve (12) month period; (vi) any Contract entered into since April 1, 2014 granting most favored customer pricing, exclusive sales, distribution, marketing, or other material exclusive rights, rights of first refusal or rights of first negotiation with respect to the software products of the Company or its Subsidiaries; (vii) any Contract entered into since April 1, as applicable2014 required to be listed under Section 4.12(c)(i) or 4.12(c)(ii) of the Disclosure Schedule; and (viii) any Contract listed on Section 3.10(a) of the Unit Purchase Agreement Disclosure Schedule (collectively, the “Material Contracts”).
(b) Assuming the accuracy and completeness of the representations and warranties in Section 3.10 of the Unit Purchase Agreement, neither the Company nor any Subsidiary of the Company is in material breach of or default under the terms of any Material Contract and, to the Knowledge of the Company’s Knowledge, no other party to any Material Contract is in material breach of or default under the counterparties terms of any Material Contract. Except for the Bankruptcy and Equity Exception, each Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto (and to the Knowledge of the Company, each other party thereto), and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)effect.
Appears in 2 contracts
Samples: Merger Agreement (PCF 1, LLC), Merger Agreement (Neulion, Inc.)
Material Contracts. (a) Section 3.13(aSchedule 4.13(a) sets forth all of the Company Disclosure Schedule contains following Contracts (each a listing of all Contracts described in clauses (i“Material Contract” and, collectively, the “Material Contracts”) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, any of them is bound (excluding any Contract covered by Section 4.11(b)(ii)) and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):which:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act);
(ii) would be treated as a sale-leaseback arrangement under GAAP;
(iii) involves the lease of personal property by the Company or any Contract relating of its Subsidiaries that provides for rent payable by the Company or any of its Subsidiaries in any twelve (12) month period in excess of $2,000,000 (and which cannot be terminated by the Company or any of its Subsidiaries without penalty on 180 days’ notice);
(iv) is with a Material Customer or a Material Supplier (or an applicable Affiliate or Subsidiary thereof) (excluding Contracts that are routine purchase orders and related releases occurring in the Ordinary Course of Business);
(v) relates to Indebtedness indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lienindebtedness between the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries) on under which the principal amount outstanding thereunder payable by the Company or any of its Subsidiaries is in excess of $1,000,000;
(vi) contains any material assets or properties outstanding obligation 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;
(vii) is a joint venture, partnership or similar agreement;
(viii) provides for any change of control bonuses and/or severance payments, in each case, that would become payable solely as a result of the transactions contemplated herein to any current or former “executive officers” (as defined under item 402(a)(3) of Regulation S-K under Rule 3b-7 promulgated under the Exchange Act) of the Company or any of its Subsidiaries;
(iiix) relates to the services of any Contract under which employee, director or officer of the Company or its Subsidiaries is lessee any Subsidiary who has a title of “Senior Vice President” or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000higher;
(iiix) any Contract under which involves unpaid (as of the Company or its Subsidiaries is lessor of or permits any third party date hereof) commitments to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries make capital expenditures in excess of $1,000,000 over individually or in the life aggregate, by or on behalf of the Contract Company or any of its Subsidiaries other than (i) Contracts between the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries or (Bii) other Contract with respect commitments reflected in the capital expenditure budget of the Company and its Subsidiaries for corporate, maintenance and strategic capital expenditures through December 31, 2019, and provided to material Company Licensed Intellectual Property Parent prior to the date hereof (other than any Non-Scheduled Contractsthe “CapEx Budget”);
(vxi) any Contract that (A) limits or purports to limit, restricts in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict respect the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test compete in any business or research products, directly geographic area or indirectly through third parties, hire any individual or to solicit group of individuals;
(xii) is with (A) the U.S. Federal Government or any potential employee government in a nation-state of the European Union or customer, (B) any other Governmental Body and in each case, in any material respect or case that would so limit or purports involves payments to limit, in any material respect, Parent the Company or any of its Affiliates after the ClosingSubsidiaries in any twelve (12) month period in excess of $5,000,000;
(vixiii) is a license of any Contract requiring Intellectual Property to or from the Company (other than with respect to (i) IT Contracts, (ii) licenses of Intellectual Property between the Company and any future capital commitment or capital expenditure of its wholly-owned Subsidiaries, and (or series of capital expendituresiii) commercially available software products under standard end-user object code license agreements) and involves payments by the Company or any of its Subsidiaries in an amount any twelve (12) month period in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement1,000,000;
(viixiv) any relates to the pending acquisition or sale of a business; or
(xv) constitutes a Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any for borrowed money under which a Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment inCompany, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity customers in the Ordinary Course of Business) is advanced or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with loaned an employee or individual consultant or independent contractor, involving aggregate payments of more than amount exceeding $500,000 per year;1,000,000; or
(xvi) contains any employment or consulting Contract with severance, change in control, retention or similar arrangements, provision that will result in any obligation (absolute or contingent) requires the purchase of all of the Company Company’s (or any of its Subsidiaries Subsidiaries’) requirements for a given product or service from a given third party, which product or service is material to make any payment or incur any Liability the Company and its Subsidiaries, taken as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andwhole;
(xviib) any other Contract the performance The Company has made available to Parent a correct and complete copy of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andeach Material Contract, in each case, that is including all amendments and supplements thereto. Except as would not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
have a Material Adverse Effect: (i) Each assuming the due authorization, execution and delivery thereof by the other party or parties thereto, each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is a legal, valid and binding agreement that is enforceable against the Company and/or a Subsidiary of the Company (as applicable) and, to the Knowledge of the Company, the other party or parties thereto in accordance with its terms against the Company or its Subsidiaries andterms, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights Bankruptcy and subject to general principles of equity), Equity Exception; (ii) the Company or and/or one of its Subsidiaries (as applicable) and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto are not in material breach of, or default under, any compliance with all terms of each Material Contract Contract; and (iii) no event none of the Company nor any of the Company’s Subsidiaries has occurred that received prior to the date hereof written notice of (with x) default or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract noncompliance by the Company or its Subsidiaries orunder any Material Contract, to (y) early termination of any Material Contract or (z) the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as intent of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary counterparty to alter the main contractual relationship between the parties to a particular Contract or group provisions of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Novelis Inc.), Merger Agreement (Aleris Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, complete and correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule following material contracts have previously been made available to Parent Pegasus as part of the virtual dataroom process or its agents or representatives, together with all amendments thereto):otherwise:
(i) any Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries (other than any such Contracts relating to Indebtedness solely owing to the Company or any of its Subsidiaries) or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;
(ii) any Contract for the disposition of any portion of the assets or business of the Company or any of its Subsidiaries or for the acquisition by the Company or any of its Subsidiaries of the assets or business of any other Person in each case for an aggregate purchase price in excess of €15,000,000 (other than acquisitions or dispositions made in the ordinary course of business), or under which the Company or any of its Subsidiaries has any continuing obligation with respect to an "earn-out", contingent purchase price or other contingent or deferred payment obligation;
(iii) any Contract under which the Company or any of its Subsidiaries is a lessee of or holds hold or operatesoperate, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $€500,000;
(iiiiv) any Contract under which the Company or any of its Subsidiaries is are a lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000€500,000;
(ivv) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value in excess of €500,000, other than sales or purchases in the ordinary course of business consistent with past practices and sales of obsolete equipment;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract €500,000 annually or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)€4,000,000 over the term of the agreement;
(vvii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent the TopCo or any of its Affiliates after the Closing, (B) contains any exclusivity, “"most favored nation” " or similar provisions, obligations or restrictions in favor of the Company's or such Subsidiary's counterparty to such Contract, (C) contains "take or pay", "requirements" or other similar provisions obligating the Company or any of its Subsidiaries to provide the quantity of goods or services required by another Person, or (CD) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in the case of each caseof the foregoing clauses (A), (B), (C) and (D), in any material respect or that would so limit or purports to limit, in any material respect, Parent TopCo or any of its Affiliates after the Closing;
(viviii) any Contract requiring that (A) relates to (1) the licensing of, or grant of other rights under, material Intellectual Property to or from the Company or any future capital commitment Subsidiaries, or capital expenditure (2) the ownership, development or series use of capital expendituresany Intellectual Property, or (B) affects the Company's or any Subsidiaries' ability to use, enforce or disclose any Intellectual Property in connection with the resolution of any claim or dispute related to Intellectual Property, excluding in the case of either (A) or (B) (x) non-exclusive end-user licenses for unmodified, commercially available, off-the-shelf Software, with an aggregate fee of less than €300,000, and (y) non-exclusive licenses granted by the Company or its Subsidiaries a Subsidiary to customers in the ordinary course of business consistent with past practice;
(ix) any Contract that is a hosting agreement or a co-location agreement with an amount aggregate fee for hosting services in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement€500,000;
(viix) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a any Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a any Subsidiary, in each case in excess of $€200,000;
(viiixi) any Contract under which the Company or its Subsidiaries any Subsidiary has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person (other than between the Company and any Subsidiary) outside of the Ordinary Course ordinary course of Business business or, individually or in the aggregate, in an amount in excess of $200,000 €1,500,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation settlement or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by in excess of €500,000 in the Company or its Subsidiaries aggregate after the date of this Agreement, (B) with a Governmental Authority Authority, or (C) that imposes or is reasonably likely to impose, at any materialtime in the future, any material non-monetary obligations on the Company or any of its Subsidiaries (or Parent TopCo or any of its Affiliates after the Closing); and;
(xiii) each collective bargaining agreement or other any Contract with the Company a director, shareholder, executive officer, other employee or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees individual service provider of the Company or its Subsidiaries, on the other handin each case, with annual base compensation in excess of €500,000 or that (A) provides for Change of Control Payments or (B) provides for retention bonuses, severance, or similar payments in excess of €500,000;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member Lease involving annual lease payments in excess of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)€500,000;
(xv) any employment(A) material advertising, consultingagency, bonusoriginal equipment manufacturer, commissions dealer, distributors, joint marketing, joint development, research and development or other similar Contract, and (B) any Contract establishing any joint venture, profit-sharing, partnership, co-promotion, commercialization, strategic alliance or other compensation Contract with an employee collaboration that is material to the business of the Company and its Subsidiaries taken as a whole (other than joint ventures, profit-sharing, partnerships, co-promotion, commercialization, strategic alliances, and other collaborations entered into for purposes of a specific project or individual consultant or independent contractor, involving aggregate payments group of more than $500,000 per yearprojects and which are not material to the business of the Company and its Subsidiaries taken as a whole);
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries any Subsidiary in excess of $300,000 €700,000 or (B) aggregate payments to or from the Company or its Subsidiaries any Subsidiary in excess of $1,500,000 €2,500,000 over the life term of the agreement; and
(xvii) any collective bargaining agreement andor other Contract with any labor union, works council or labor organization (each, a "Labor Agreement").
(b) Except, in each case, that is as would not terminable by reasonably be expected to be, individually or in the applicable aggregate, material to the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, taken as applicablea whole, to the Company’s Knowledge, the counterparties thereto, and knowledge each Material Contract is (i) in full force and effect and (ii) a legal, valid and binding obligation of the Company or any of its Subsidiaries party thereto, enforceable in accordance with its terms against the Company or its Subsidiaries party thereto and, to the knowledge of the Company’s Knowledge, the counterparties thereto (other parties thereto, in each case, subject to applicable bankruptcythe Enforceability Exceptions. Except, insolvencyin each case, reorganizationas would not reasonably be expected to be, moratorium individually or other Laws affecting generally in the enforcement of creditors’ rights aggregate, material to the Company and subject to general principles of equity)its Subsidiaries, (ii) taken as a whole, there is no material breach or default by the Company or any of its Subsidiaries or, to the knowledge of the Company, any third party under any Material Contract, and, to the knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iiiA) no event has occurred that which (with or without due notice or lapse of time or both) would result in constitute a material breach or default or would permit termination of, or default undera material modification or acceleration thereof by any party to such Material Contract, any and (B) no party to a Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties has claimed a force majeure with respect thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatExcept, in each case, do as would not contain reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, since December 31, 2019 through the date of this Agreement, neither the Company nor any material executory of its Subsidiaries have received notice of (i) any breach or continuing termsdefault under any Material Contract or (ii) the intention of any third party under any Material Contract to cancel, conditionsterminate or modify the terms of any such Material Contract, or accelerate the obligations of the Company or rights)any of its Subsidiaries thereunder.
Appears in 2 contracts
Samples: Business Combination Agreement (Pegasus Digital Mobility Acquisition Corp.), Business Combination Agreement (Pegasus Digital Mobility Acquisition Corp.)
Material Contracts. (a) Section 3.13(a) of 3.12.1 Except for contracts set forth on the “Exhibit Index” included in the Company’s Form 10-K for the year ended December 31, 2011 or the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSEC Filings subsequently filed, as of the date of this Agreement, neither the Company nor any Company Subsidiary, nor any of their respective assets, properties, businesses or operations is a party to, or bound or affected by, or receives benefits under:
(a) any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(b) any Contract relating to the borrowing of money by the Company or its Subsidiaries is a party any Company Subsidiary or the guarantee by which they are bound, the Company or any Company Subsidiary of any such obligation (other than a Company Benefit PlanContracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and that are not expired FHLB advances of depository institution Subsidiaries, trade payables and Contracts relating to borrowings or have not been terminated and not including guarantees made in the ordinary course of business) in excess of $1,000,000;
(c) any Contracts pursuant to Contract which prohibits or restricts the Company has or any Company Subsidiary from (i) engaging in any business activities in any geographic area, line of business or otherwise in competition with no material outstanding any other person, (ii) soliciting or executory obligations accepting business from any person or Liabilities (such iii) soliciting any person for employment or hire (excluding Contracts as are required entered into in the ordinary course with respect to be set forth on Section 3.13(a) of temporary employment, consulting arrangements and similar arrangements and it being understood that the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on will be permitted to update Section 3.13(a3.12.1(c) of the Company Disclosure Schedule within twenty (20) Business Days following the date hereof so as to provide a true and correct list of all of the Contracts containing restrictions on the soliciting of any person for employment or hire, and such updates shall be deemed to have previously been made available to Parent or its agents or representatives, together with all amendments thereto):modified Schedule 3.12.1(c) as of the date of this Agreement);
(id) any Contract between or among the Company or any Company Subsidiary;
(e) any Contract relating to Indebtedness for borrowed money the purchase or sale of the Company any goods or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled services by the Company or its Subsidiaries, except for a Company Subsidiary (other than Contracts entered into in the ordinary course of business and either (i) involving payments under any lease or agreement under which the aggregate annual rental payments do individual Contract not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $300,000 per year or $1,000,000 over the expected life of the Contract Contract, or (Bii) other Contract with respect to material involving Loans, borrowings or guarantees originated or purchased by the Company Licensed Intellectual Property (other than or any Non-Scheduled ContractsCompany Subsidiary in the ordinary course of business);
(vf) any Contract that (A) limits or purports to limit, in any material respect, the freedom of which obligates the Company or 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 limitCompany Subsidiary (or, in any material respect, following the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability consummation of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respectMerger, Parent or any Parent Subsidiaries) to conduct business with any third party on an exclusive or preferential basis (other than Contracts entered into in the ordinary course of its Affiliates after the Closing;
business that (vii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) can be terminated by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually relevant Company Subsidiary immediately without penalty or other obligation to make payment, or (Bii) $1,000,000 over with respect to which the life of the agreement;
(vii) any Contract requiring maximum reasonably expected termination, break or similar fee payable by the Company or its Subsidiaries to guarantee relevant Company Subsidiary (or the Liabilities of any Person (other than the Company Parent or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Parent Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which after giving effect to the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orMerger), individually or in the aggregate, in an amount in excess of is less than $200,000 or made any capital contribution to, or other investment in, any Person100,000);
(ixg) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license offer or any other similar rights right with respect to any material Company Product assets, rights or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business properties of the Company or its Subsidiaries or for any Company Subsidiary;
(h) any Contract which limits the acquisition payment of dividends by the Company or its Subsidiaries of the assets or business of any other Person Company Subsidiary;
(other than acquisitions or dispositions made in the Ordinary Course of Business), or under i) any Contract pursuant to which the Company or its Subsidiaries any Company Subsidiary has agreed with any continuing obligation third parties to become a member of, manage or control a joint venture, partnership, limited liability company or other similar entity;
(j) any Contract pursuant to which the Company or any Company Subsidiary has agreed with respect any third party to a change of control transaction such as an acquisition, divestiture or merger and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out,” contingent purchase price or other contingent or deferred payment obligationobligations) that are still in effect other than customary obligations to indemnify directors and officers;
(xiik) except for standard end-user license agreements to off the shelf software having a value under $10,000, for any settlementContract wherein the Company or any Company Subsidiary is the recipient of a license, conciliation sublicense (of any tier), covenant not to xxx or similar Contract assert, or immunity from suit under any Intellectual Property rights of any other person;
(Al) requiring monetary payments except for non-exclusive licenses to the Company’s trademarks granted by the Company or its Subsidiaries after a Company Subsidiary to a vendor for the date provision of this Agreement, (B) with a Governmental Authority products or (C) that imposes any material, non-monetary obligations on services to the Company or its Subsidiaries (or Parent or a Company Subsidiary in the ordinary course of business, any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with wherein the Company or its Subsidiariesany Company Subsidiary expressly grants a license, sublicense (of any tier), covenant not to xxx or assert, immunity from suit or similar rights under any material Company IP;
(m) except for standard employment Contracts, any Contract wherein a person assigns to the Company or a person is obligated to assign to the Company, any title, in whole or in part, solely or jointly, beneficially or actually, with respect to any Intellectual Property, or any person has an option or other right concerning any of the foregoing;
(n) any Contract that provides for a termination, break, or similar fee in excess of $100,000; or
(o) except transactions made in accordance with Regulation O and agreements entered into in the ordinary course of business for compensation or indemnity, any Contract between the Company or any Company Subsidiary, on the one hand, and (1) any labor union, labor organization officer or works council representing employees director of the Company Company, or its Subsidiaries(2) to the knowledge of the Company, any (x) record or beneficial owner of five percent (5%) or more of the voting securities of the Company, (y) affiliate or family member of any such officer, director or record or beneficial owner or (z) any other affiliate of the, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member except those of an Affiliate a type available to employees of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) generally. Each contract of the Company or any of its Subsidiaries type described in this Section 3.12.1 is referred to make any payment or incur any Liability herein as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and“Company Material Contract.”
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Section 3.12.2 Each Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and legally valid, binding and enforceable in accordance with its terms against in all material respects on the Company or its Subsidiaries and each Company Subsidiary party thereto and, to the Company’s Knowledgeknowledge, the counterparties thereto (subject to applicable each other party thereto, except as enforceability may be limited by bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other Laws similar laws relating to or affecting generally the enforcement of creditors’ rights and subject to remedies of creditors and by general principles of equity)equity regardless of whether considered in a proceeding in equity or at Law. Except as has not had, (ii) individually or in the aggregate, a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it under each Company Material Contract and Company Lease. To the Company’s knowledge, and except as has not had, individually or in the aggregate, a Company Material Adverse Effect, each other party to each Company Material Contract and Company Lease has performed all obligations required to be performed by it under such Company Material Contract and Company Lease. None of the Company or its Subsidiaries and, to any Company Subsidiary has received written notice of any violation or default under (or any condition which with the Company’s Knowledge, passage of time or the counterparties thereto are not in material breach of, giving of notice would cause such a violation of or default under, ) any Company Material Contract and (iii) no event has occurred or Company Lease, except for violations or defaults that (with have not had, individually or without due notice or lapse of time or both) would result in the aggregate, a material breach of, or default under, any Company Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Citizens Republic Bancorp, Inc.), Merger Agreement (Firstmerit Corp /Oh/)
Material Contracts. (a) Section 3.13(a3.15(a) of the Company Seller Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, sets forth as of the date of this AgreementAgreement a list of the following Contracts (other than Benefit Plans, purchase orders and invoices) to which any of the Company Transferred Entities or its Subsidiaries other applicable Affiliate of Seller is a party or by which they any of their respective properties or assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant in each case with respect to which the Company has with no material outstanding or executory obligations or Liabilities Business (such Contracts as are required to be set forth and including purchase orders and invoices whether or not listed on Section 3.13(a3.15(a) of the Company Seller Disclosure Schedule, the “Business Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company each power purchase agreement, sale or its Subsidiaries exchange agreement or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariessimilar bilateral Contract;
(ii) any Contract under which the Company each electricity interconnection, transmission or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000marketing agreement;
(iii) any Contract under which the Company each (A) engineering, procurement and construction agreement, (B) equipment supply or its Subsidiaries is lessor of or permits any third party to hold or operateservice agreement, (C) warranty agreement and performance guarantee agreement and (D) operation and maintenance agreement, in each case, case (x) that obligates any tangible property Transferred Entity to make payments in excess of $2,000,000 in any calendar year and (y) other than real property), owned any such agreement that has expired or controlled by the Company or otherwise been terminated in accordance with its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000terms;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Contract committing the Business or research any Transferred Entity to any future capital expenditures or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries capital investments in excess of $1,000,000 during any calendar year or $8,000,000 over the life term of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)such Contract;
(v) the Real Property Leases;
(vi) any Contract that by its express terms (A) materially limits or purports to limit, in any material respect, materially impairs the freedom ability of the Company or its Subsidiaries Transferred Entities to engage or compete in any line of business or with any Person or in any geographic area or that would so limit otherwise carry out their business (including through non-compete, exclusivity or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing“most-favored nation” provisions), (B) contains any exclusivity, “most favored nation” rights of first offer or refusal or similar provisions, obligations or restrictions rights binding on any Transferred Entity or (C) contains obligates any other provisions restricting Transferred Entity to make a minimum amount of purchases of goods or purporting services or obligates any Transferred Entity or the Business to restrict the ability maintain a minimum amount of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryinventory, in each case in excess of $200,0002,000,000 during any calendar year or $8,000,000 over the term of such Contract;
(vii) any Contract evidencing Indebtedness for borrowed money of any Transferred Entity (whether or not incurred, assumed, guaranteed or secured by any asset of any Transferred Entity), other than any Indebtedness for borrowed money to the extent owing from any of the Transferred Entities to any of the other Transferred Entities;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make with a Governmental Entity (other than any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or such Contract that is entered into in the aggregate, in an amount in excess ordinary course of $200,000 or made any capital contribution to, or other investment in, any Personbusiness and is not material);
(ix) each Contract pursuant to which (A) Seller or any Contract required of its Affiliates, including any Transferred Entity, provides or posts any guarantee, indemnity (other than standard indemnity agreements entered into in the ordinary course of business), performance or surety bond, letter of credit, commitments or other similar credit support arrangement or obligation relating to be disclosed on Section 3.19 the Business or a Transferred Entity (collectively, the “Seller Guarantees”) or (B) any third party (for clarity, not including Seller or any of its Affiliates) provides or posts any guarantee, indemnity (other than standard indemnity agreements entered into in the Company Disclosure Scheduleordinary course of business), performance or surety bond, letter of credit, commitments or other similar credit support arrangement or obligation relating to the Business or a Transferred Entity;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar each Contract (A) requiring monetary payments by between any member of the Company or its Subsidiaries after Seller Group (other than the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the ClosingTransferred Entities); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its SubsidiariesTransferred Entity, on the other hand;
hand and (xivB) each Contract between any Contract with the Company or its SubsidiariesTransferred Entity, on the one hand, and any officer, director, manager, stockholder, member director or officer of an such Transferred Entity (or any Affiliate of the Company any such director or its Subsidiaries or officer (other than any of their respective Affiliates the Transferred Entities), on the other hand, other than (excluding employee confidentiality for (A) and invention assignment agreements(B) any such Contract that will be fully performed by, or will not otherwise survive, the Closing);
(xi) any Contract, other than as set forth in clauses (a)(i) through (xix), which is necessary for the physical delivery of natural gas to the Facilities;
(xii) any Commingled Contract;
(xiii) any joint venture, partnership, strategic alliance, profit sharing, limited liability company agreement, co-development Contract or Contract relating to any equity interests or incentive equity documentsother securities of a Transferred Entity or rights in connection therewith;
(xiv) any Contract that relates to the acquisition or disposition of any business, Company Organizational DocumentsEquity Interests or assets of any other Person (whether by merger, employment agreementssale of Equity Interests, indemnification agreements, and offer letters for at-will employment)sale of assets or otherwise) pursuant to which a Transferred Entity has material outstanding obligations;
(xv) any employment, consulting, bonus, commissions Contract pursuant to which any Transferred Entity licenses to or from another Person any Intellectual Property (other compensation Contract than “shrink wrap” and similar generally available commercial end-user licenses to software with an employee or individual consultant or independent contractor, involving aggregate payments annual cost of no more than $500,000 per year100,000 in the aggregate);
(xvi) any employment outstanding futures, swap, collar, put, call, floor, cap, option or consulting other Contract with severanceentered into by a Transferred Entity that is intended to benefit from or reduce or eliminate the risk of fluctuations in interest rates or the price of commodities, change in controlincluding electric power, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company form, including energy, capacity or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andancillary services;
(xvii) any other Contract involving the performance resolution, compromise or settlement of which requires either (A) annual payments to any actual or from the Company or its Subsidiaries threatened claim in excess of an amount greater than $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and1,000,000 payable by any Transferred Entity, in each case, (A) entered into in during the last three (3) years or (B) that is have not terminable by been fully performed or that otherwise imposes any continuing nonmonetary obligations on any Transferred Entity;
(xviii) any Contract that evidences any obligations of any Transferred Entity with respect to the applicable issuance, sale, pledge, voting, repurchase or redemption of any equity interests of any Transferred Entity other than solely among Transferred Entities; and
(xix) any Contract, other than as set forth in the Company foregoing clauses (i) through (x), which expressly provides for future payments to or its Subsidiaries without penalty upon less than thirty from any Transferred Entity (30contingent or otherwise) days’ prior written noticein excess of $2,500,000 during any calendar year or $8,000,000 over the term of such Contract.
(b) Except as would not reasonably be expected to be material to the Business and the Transferred Entities, taken as a whole, (i) Each each Business Material Contract is a legal, valid and binding on obligation of the Company applicable Transferred Entity or its Subsidiariesother applicable Affiliate of Seller party thereto, as applicableand, to the Company’s KnowledgeKnowledge of Seller, the counterparties theretoeach counterparty, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)effect, (ii) none of the Company Transferred Entities or its Subsidiaries andother applicable Affiliate of Seller nor, to the Company’s KnowledgeKnowledge of Seller, the counterparties thereto are not any other party thereto, is in material breach of, or in default under, any such Business Material Contract Contract, and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, thereunder by any Material Contract by the Company such Transferred Entity or its Subsidiaries other applicable Affiliate or, to the Company’s KnowledgeKnowledge of Seller, the counterparties any other party thereto. The Company No party to any Business Material Contract has exercised in writing any termination rights with respect thereto and neither any Transferred Entity nor any other member of the Seller Group have received written notice from any party to any Business Material Contract to the effect that such party will, or has threatened to, terminate, not renew or materially and adversely change the terms, conditions or provisions (including with respect to payment or pricing) with respect to, any Business Material Contract. A true and complete copy of each Business Material Contract (or a written summary of the terms of any oral Business Material Contract), other than purchase orders or invoices, has been made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Purchaser.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Pseg Power LLC), Equity Purchase Agreement (Pseg Power LLC)
Material Contracts. (a) Section 3.13(a) of the The Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is neither a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):nor bound by:
(i) any Contract relating to Indebtedness lease (whether of real or personal property) providing for borrowed money annual rentals of $25,000 or more that cannot be terminated on not more than 60 days’ notice without payment by the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariespenalty;
(ii) any Contract under which the Company material partnership, joint venture or its Subsidiaries is lessee of other similar agreement or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000arrangement;
(iii) any Contract under which agreement relating to indebtedness for borrowed money or the Company or its Subsidiaries is lessor deferred purchase price of or permits any third party to hold or operate, property (in each either case, whether incurred, assumed, guaranteed or secured by any tangible property (other than real propertyasset), owned or controlled by the Company or its Subsidiaries, except for any lease or such agreement under which the with an aggregate annual rental payments do outstanding principal amount not exceed exceeding $200,00050,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract agreement that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, area; or
(Bv) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting agreement, commitment, arrangement or purporting plan not made in the ordinary course of business that is material to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;Company.
(vib) any Contract requiring any future capital Each agreement, contract, plan, lease, arrangement or commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the ClosingSection 3.11(a) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to agreement of the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, and enforceable in accordance with its terms against none of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge of Sellers, any other party thereto is in default or breach in any respect under the counterparties theretoterms of any such agreement, contract, plan, lease, arrangement or commitment, except for any such defaults or breaches which would not have a Company Material Adverse Effect. The [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. Schedules (or similar attachments) referred to and listed herein shall have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule (or similar attachment) will be furnished to the Commission upon request.
(c) Each Assigned Nutley License and Assigned Basel License is a valid and binding agreement of Roche Nutley or Roche Basel, as the case may be, and is in full force and effect, and neither such Seller nor, to the knowledge of Sellers, any other party thereto is in default or breach in any respect under the terms of any such Assigned Nutley License or Assigned Basel License, except for any such defaults or breaches which would not have a Company Material Adverse Effect. Other than as listed on Section 3.11(c) of the Sellers Disclosure Schedule, to the knowledge of Sellers, none of Roche Nutley, Roche Basel or the Company has made available to Parent true and complete copies of all Material Contracts in effect as received any written notice under any of the date hereof (other than purchase orders, invoices, Assigned Nutley Licenses and similar confirmatory Assigned Basel Licenses asserting that there has been or administrative documents that are ancillary there is likely to the main contractual relationship between the parties to occur a particular Contract breach or group of Contracts default under such Assigned Nutley Licenses and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Assigned Basel Licenses.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Arrowhead Research Corp)
Material Contracts. (a) Section 3.13(aThe Company has made available to Parent (or Parent has otherwise had access to) true, correct and complete copies of each Contract to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (other than any of the foregoing between the Company, the Company Subreits and any of their respective wholly owned Subsidiaries or between any wholly owned Subsidiaries of the Company Disclosure Schedule contains or the Company Subreits), as of the date hereof, that:
(i) is required to be filed by the Company as a listing “material contract” pursuant to Item 601(b)(10) of all Regulation S-K promulgated under the Securities Act;
(ii) relates to (A) Indebtedness of the Company or any of its Subsidiaries, except for Contracts relating to less than $30 million of Indebtedness in the aggregate, or (B) the sale, securitization or servicing of loans or loan portfolios of the Company or any of its Subsidiaries;
(iii) would materially restrict the ability of Parent or its Subsidiaries (including the Surviving Entity) to compete in any line of business that is material to Parent and its Subsidiaries or in any geographic territory that is material to Parent and its Subsidiaries;
(iv) limits, restricts or prohibits the Company or any of its Subsidiaries from entering into or participating in any transaction or arrangement involving the investment in the Company or any of its Subsidiaries by any Person;
(v) relates to the acquisition or disposition, directly or indirectly (by merger or otherwise), not yet consummated, of material assets or capital stock or other equity interests of another Person or any Company Real Property;
(vi) is a Real Property Lease relating to a Company Facility;
(vii) by its terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of more than $5 million per annum or $15 million over the remaining term of such Contract, other than Real Property Leases and the type of Contracts described in clause (ii) above and other than in the ordinary course of business procurement or sale Contracts for supplies of goods or services or Contracts that may be terminated without penalty upon ninety (90) days advance written notice or Contracts that cover the procurement or sale of supplies of goods or services;
(viii) could result in liability on the part of the Company or any of its Subsidiaries in respect of any purchase price adjustment, earn-out or contingent purchase price obligation;
(ix) is a Contract entered by the Company through its purchase department and that provides for (i) “most favored nation” rights with respect to existing or future Affiliates of the Company, or (ii) provides for “exclusivity” or any similar requirements in favor of any Person, other than ordinary course of business procurement or sale Contracts for supplies of goods or services or Contracts; or
(x) obligates the Company to make any capital commitment or expenditure (including pursuant to any renovation, construction or development project) in excess of $5 million per annum, excluding any payment obligation budgeted for in the Company’s 2018 budget. Each Contract of the type described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant above is referred to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability herein as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice“Specified Contract.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).”
Appears in 2 contracts
Samples: Merger Agreement (Quality Care Properties, Inc.), Merger Agreement (Welltower Inc.)
Material Contracts. (a) Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule contains sets forth a listing complete and accurate list of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, that fall within the following categories and that are not expired or have not been terminated and not including any existing as of the date hereof (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesall Real Property Leases;
(ii) other than purchase orders issued in the Ordinary Course of Business, any Contract under which for the Company purchase of services, equipment or its Subsidiaries is lessee other assets providing for either (A) annual payments by the Business of $300,000 or holds more; or operates(B) give rise to anticipated receipts of more than $300,000 in any calendar year, in each case, case that cannot be terminated on not more than 90 days' notice without payment by the Business of any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000material penalty;
(iii) any Contract for capital expenditures by the Company or any of its Subsidiaries in excess of $300,000 in the aggregate remaining due as of the date hereof;
(iv) any Contract that is a lease under which the Company or its Subsidiaries is lessor of of, or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariesand used in the Business, except for any lease or agreement Contract under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)300,000;
(v) any Contract that (A) limits partnership, joint venture, minority investment or purports to limit, in any material respect, the freedom of the Company joint development agreement or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or other similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingContract;
(vi) any Contract requiring relating to the acquisition or disposition of any future capital commitment business (whether by merger, sale of stock, sale of assets or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries otherwise), in an amount in excess of each case, (A) $300,000 annually since January 1, 2021 or (Bb) $1,000,000 over the life of the agreementpursuant to which a Company has an earnout or deferred or contingent purchase price obligation or indemnification obligation;
(vii) any Contract requiring (x) pursuant to which the Company or any of its Subsidiaries is liable for indebtedness for borrowed money or any guarantee thereof, or (y) pursuant to guarantee which the Liabilities Company or any of its Subsidiaries has granted any Person Lien (other than a Permitted Lien) on the Company assets or a Subsidiary) properties of the Business or pursuant to which any Person (other than material assets or properties of the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Business;
(viii) any Contract under the primary purpose of which is to bind the Company Business to indemnify any other Person, with such obligation continuing after the date hereof, excluding for the sake of clarity, any sales, supply, distribution, service or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of other similar agreement entered into in the Ordinary Course of Business orthat includes an indemnity with any customer, individually supplier, distributor or in service provider of the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonBusiness;
(ix) any Contract required granting to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which a right of first refusal or right of first offer on the Company or its Subsidiaries (or Parent or sale of any material part of any of its Affiliates after the Closing) is assets or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events properties of the Business or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, an option to purchase, option to license acquire, sell or any other similar rights with respect to dispose of any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make (other than inventory in the ordinary course of business);
(x) any payment Contract containing covenants expressly limiting in any material respect the freedom or incur any Liability as a result ability of the consummation Business to conduct any line of business or compete with any Person in a product line or line of business or operate in any jurisdiction or solicit or hire employees, excluding reasonable limitations on use in connection with confidentiality, research or consulting agreements;
(xi) other than purchase orders issued in the Ordinary Course of Business, any sales, distribution or other similar Contract (whether with a dealer or otherwise) providing for the sale by the Business of materials, supplies, goods, services, equipment or other assets that provides for annual payments to the Business of $100,000 or more that cannot be terminated on not more than 90 days’ notice without payment by the Business of any material penalty;
(xii) any Contract relating to any swap, forward, futures, warrant, option or other derivative transaction;
(xiii) any Contract that contains material exclusivity requirements or similar provision binding on the Business;
(xiv) any Contract containing “most favored nation” provisions or other preferential pricing terms;
(xv) any Contract with a Governmental Authority;
(xvi) any Contract pursuant to which the Company or any Subsidiary has agreed to settle or compromise any pending or threatened Proceeding and under which any of the transactions contemplated by this Agreement, termination of employment or both; andforegoing has continuing obligations (other than confidentiality obligations with respect thereto);
(xvii) any Contract providing for the employment or engagement by the Company or any of its Subsidiaries of any Person on a full-time, part-time, independent contractor, temporary or other Contract the performance of which requires either basis, other than Contracts (A) annual payments to or from terminable by the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty for any reason upon less than thirty (30) days’ prior written noticenotice without incurring any liability or (B) providing for annual base compensation for such individual that is less than $100,000;
(xviii) any collective bargaining agreement or other Contract with any labor union or similar labor organization;
(xix) any Contract pursuant to which the Company or any of its Subsidiaries has agreed to loan any Person any amount or otherwise make any investment in any other Person, other than employee loans or advances in the Ordinary Course of Business;
(xx) any Contract pursuant to which the Company or any of its Subsidiaries grants or is granted a license or right to use, or covenant not to be sued under, any Intellectual Property Rights, other than (A) ”shrink wrap,” “off-the shelf” or other non-exclusive licenses for generally commercially available Software, including “software as a service” or similar services that are licensed to or procured by the Company or any of Subsidiaries for an annual fee of less than $300,000 (B) non-exclusive licenses granted to customers of the Business in the Ordinary Course of Business and (C) non-exclusive licenses granted by or to employees or contractors in the Ordinary Course of Business;
(xxi) any Contract relating to the acquisition, development, sale or disposition of any material Company Intellectual Property Rights, other than assignments of Intellectual Property Rights to the Company or any of its Subsidiaries from such entities’ employees or contractors in the Ordinary Course of Business;
(xxii) any Contracts with a Related Party (a “Related Party Transaction”), other than (i) the Award Agreements, (ii) employment arrangements with employees, officers and directors of the Company or any of its Subsidiaries, which arrangements are disclosed pursuant to Section 3.11(b)(xvii), (iii) the LLC Agreement and (iv) Contracts with Representatives who are not directors, managers, officers or employees of the Company or its Subsidiaries; or
(xxiii) (i) any Contract (other than purchase orders entered into in the Ordinary Course of Business) with a Material Customer that provides for annual payments to the Business of $500,000 or more or (ii) any Contract with a Material Supplier (other than purchase orders) that provides for annual payments by the Business of $500,000 or more.
(ib) Each Material Contract is a valid and binding on agreement of the Company or any of its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, Subsidiaries and is in full force and effect effect, and enforceable in accordance with its terms against none of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement any of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, any other party is in default or breach under the counterparties theretoterms of any such Material Contract, except for any such defaults or breaches that would not, and would not reasonably be expected to, individually or in the aggregate, be material to the Business, taken as a whole. The Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has made available received any written notice on or prior to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersof any intention to terminate, invoicesrepudiate or disclaim, or materially reduce the amount of purchases or sales under any Material Contract from any party thereto, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Company’s knowledge, no such action has been threatened and neither the parties to a particular Contract or group of Contracts and that, in each case, do not contain Company nor any material executory Subsidiary has delivered or continuing termsthreatened any such action. Seller has provided to Buyer a true, conditionscomplete and correct copy of each Material Contract (including any amendments, obligations modifications or rightssupplements thereto).
Appears in 2 contracts
Samples: Merger Agreement (MasterBrand, Inc.), Merger Agreement (MasterBrand, Inc.)
Material Contracts. (a) Section 3.13(a) As of the date hereof, there are no Contracts to which it or any of its Subsidiaries is a party (other than Reinsurance Contracts, Real Property Leases and Benefit Plans): (i) that are required to be described in, or filed as an exhibit to, any of its SEC Reports that are not so described or filed as required by the Securities Act or the Exchange Act, (ii) that contain any provisions restricting the ability of it or any of its Subsidiaries, or which, following the consummation of the Amalgamation, would restrict the ability of Axis or any of its Subsidiaries or PRE or any of its Subsidiaries or any of their successors, including the Amalgamated Company Disclosure Schedule contains and its Subsidiaries, to compete or transact in any business or with any Person or in any geographic area or grants a listing right of all exclusivity to any Person, (iii) pursuant to which any indebtedness of it or any of its Subsidiaries is outstanding or may be incurred in excess of $50 million or pursuant to which it or any of its Subsidiaries guarantees any indebtedness of any other Person (other than it or any of its Subsidiaries) (except for trade payables arising in the ordinary course of business), (iv) involving any material partnership, joint venture or other similar arrangement with any other Person (other than it or any of its Subsidiaries), relating to the formation, creation, operation, management or control of any such partnership or joint venture, (v) that involves or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $5 million in any twelve-month period, other than: (A) Contracts that can be terminated by it or any of its Subsidiaries on less than 90 days’ notice without payment by it or any of its Subsidiaries of any penalty, or (B) Assumed Reinsurance Contracts, (vi) that have been entered into since January 1, 2012 or otherwise provide for material ongoing obligations of it or any of its Subsidiaries and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business (excluding, for the avoidance of doubt, acquisitions or dispositions of Investment Assets, and immaterial tangible assets in the ordinary course of business), (vii) that outsources any material function or part of its business or that of any Subsidiary or Subsidiaries (viii) that prohibits or restricts the payment of dividends or distributions in respect of its shares or capital stock or those of any of its Subsidiaries, prohibits the pledging of the shares or capital stock of it or any of its Subsidiaries or prohibits or restricts the issuance of any guarantee by it or any of its Subsidiaries, (ix) that restricts its ability to incur indebtedness or guarantee the indebtedness of others, or (x) in its case (and not in the case of any of its Subsidiaries) that are guarantees, including of obligations, suretyship contracts, performance bonds or other form of guaranty agreement or capital maintenance agreements or any keep xxxxx, or (xi) Contracts or agreements that contain a put, call or similar right pursuant to which it 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 $50 million (each such Contract described in clauses (i)-(xi), other than any Reinsurance Contract, Real Property Lease or Benefit Plan, a “Material Contract”).
(i) through Each Material Contract is a legal, valid and binding agreement of it and its Subsidiaries to the extent such Person is a party thereto and, to its Knowledge, each other party thereto is in compliance in all material respects with its terms and is in full force and effect, except where the failure to be valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (xiiiii) below it and each of its Subsidiaries and, to whichits Knowledge, each other party thereto, has performed all obligations required to be performed by such Person under such Material Contract, except where such noncompliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) neither it nor any of its Subsidiaries has received notice of the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of it or any of its Subsidiaries under any Material Contract, except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (iv) there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c) Section 3.17(c) of its Disclosure Letter contains a true and correct list, as of the date of this Agreement, the Company or its Subsidiaries is a party or of each Material Contract entered into by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent it or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Agreement and Plan of Amalgamation (Partnerre LTD), Agreement and Plan of Amalgamation (Axis Capital Holdings LTD)
Material Contracts. (a) Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule contains sets forth a listing true and complete list of all the following Contracts described in clauses (i) through (xiii) below to which, effect as of the date of this Agreement, Agreement to which either of the Company or its Subsidiaries Acquired Companies is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContracts, collectively, the “Material Contracts”). True; provided, correct and complete copies of however, that a Contract referenced by more than one description need only be listed once on the Contracts listed on Section 3.13(a) of the Company Seller Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Schedule:
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesevidencing Indebtedness;
(ii) any Contract under pursuant to which either of the Company Acquired Companies (A) has acquired the right to use, or its Subsidiaries is lessee of any license, release, authorization or holds or operates, in each caseother immunity under, any tangible property (Intellectual Property Rights owned by a third party, other than real property)licenses for COTS Software; or (B) has granted to any third party any license to use, owned by or any license, release, authorization or other Personimmunity under, except for any lease Business Intellectual Property Rights, other than non-exclusive rights that an Acquired Company grants to customers with respect to Acquired Company Product units in connection with the distribution or agreement under which sale of such Acquired Company Product units to customers in the aggregate annual rental payments do not exceed $500,000ordinary course of business consistent with past practice;
(iii) any Contract Contracts under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life either of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, Acquired Companies made or agreed to make any loan, advance, or assignment of payment to any Person outside of received payments during the Ordinary Course of Business orprevious 12 months, individually or in the aggregate, in an amount excess of $500,000;
(iv) any agreement for capital expenditures or the acquisition or construction of fixed assets requiring payments by the Acquired Companies, individually or in the aggregate, in excess of $200,000 500,000 during the previous 12 months or made at any capital contribution totime in the future;
(v) any Contract containing a covenant not to compete or that otherwise impairs the ability of the Acquired Companies (or Buyer on behalf of the Acquired Companies) to freely conduct business in any geographic area;
(vi) any Contract that requires an Acquired Company to deal exclusively with any Person with respect to any matter or that provides “most favored nation” pricing or terms to the other party to such Contract or any third party;
(vii) any partnership, joint venture or other investment insimilar agreement or arrangement;
(viii) any agreement relating to the acquisition or disposition of any business (whether by merger, any Personsale of stock, sale of assets or otherwise);
(ix) any lease, sublease or other similar Contract required to be disclosed on Section 3.19 in respect of the Company Disclosure ScheduleReal Property;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any an Affiliate of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;an Acquired Company; and
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)employment, or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlementcompensation, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementseverance, (B) with a Governmental Authority or (C) that imposes any materialbonus, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement retirement or other Contract with for which the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries Acquired Companies have obligations in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries 100,000 in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeany 12-month period.
(b) Except as set forth in Section 3.11(b) of the Seller Disclosure Schedule, (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and each Government Contract is in full force and effect and enforceable in accordance with its terms against constitutes a valid and binding obligation of the respective Acquired Company or its Subsidiaries that is party thereto and, to the Company’s KnowledgeKnowledge of Seller, the counterparties other parties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally except as such enforcement may be limited by the enforcement of creditors’ rights Enforceability Exceptions; and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s KnowledgeKnowledge of Seller, the counterparties thereto are not (A) no party to such Material Contract or Government Contract is in material breach of, or material default under, any of such Material Contract or Government Contract and (iiiB) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute a material breach of, or material default under, any thereunder by the Acquired Companies or would permit the modification or premature termination of such Material Contract or Government Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties any other party thereto. The Company Seller has made available to Parent Buyer true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory together with all amendments or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)modifications thereto.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (API Technologies Corp.)
Material Contracts. (a) Section 3.13(a) Schedule 4.25 delivered to AMCON by HNWC prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company or its Subsidiaries HNWC is a party or by which they are boundis bound or under which HNWC has or may acquire any rights, which involve or relate to (i) obligations of HNWC for borrowed money or other indebtedness where the amount of such obligations exceeds $50,000 individually, (ii) the lease by HNWC, as lessee or lessor, of real property for rent of more than $25,000 per annum, (iii) the purchase or sale of goods (other than a Company Benefit Plan, and raw material to be purchased by HNWC on terms that are customary and consistent with the past practice of HNWC and in amounts and at prices substantially consistent with past practices of HNWC) or services with an aggregate minimum purchase price of more than $25,000 per annum, (iv) rights to manufacture and/or distribute any product which accounted for more than $25,000 of the consolidated revenues of HNWC during the fiscal year ended December 31, 1999 or under which HNWC received or paid license or other fees in excess of $25,000 during any year, (v) the purchase or sale of assets or properties not expired in the ordinary course of business having a purchase price in excess of $25,000, (vi) the right (whether or have not been terminated and not currently exercisable) to use, license (including any Contracts pursuant to which the Company has with no material outstanding "in-license" or executory obligations "outlicense"), sublicense or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) otherwise exploit any intellectual property right or other proprietary asset of the Company Disclosure ScheduleHNWC or any other Person which, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, when considered together with all amendments thereto):
such other rights, is material to HNWC; (ivii) any Contract relating material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of HNWC (A) to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) to acquire any product or other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent asset or any of its Affiliates after the Closingservices from any other Person, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; (x) individual capital expenditures or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 25,000; or (Bxi) aggregate payments any license, lease or other right to or from the Company or use any water used by HNWC in its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable bottling operations. All such contracts and agreements are duly and validly executed by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid HNWC and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is are in full force and effect and enforceable in accordance with its terms against the Company all material respects. HNWC has not violated or its Subsidiaries breached, or committed any default under, any contract or agreement, and, to the Company’s Knowledgeknowledge of HNWC, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium no other Person has violated or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have a HNWC Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by HNWC under any contract or agreement or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement, (C) accelerate the maturity or performance of any contract or agreement, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatagreement, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a HNWC Material Adverse Effect. All such contracts and agreements will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hawaiian Natural Water Co Inc), Merger Agreement (Amcon Distributing Co)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains lists each of the following Contracts to which the Company or any Company Subsidiary is a listing party, or by which it is bound or to which any of all Contracts described its respective assets or properties is bound, in clauses (i) through (xiii) below to whicheach case, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Agreement (such Contracts as are required to be set forth Contracts, whether or not listed on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K) that has been, or was required to Indebtedness be, filed with the SEC with the Company’s Annual Report on Form 10-K for borrowed money the year ended March 31, 2018 or any SEC Reports filed after the date of filing of such Form 10-K until the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof;
(ii) any Contract under which for the purchase of materials, supplies, goods, services, equipment or other assets that, during the fiscal year ended March 31, 2018, resulted in, or during the fiscal year ended March 31, 2019, is reasonably expected to result in, aggregate purchases or other spend by the Company or its Subsidiaries is lessee any Company Subsidiary of $1,000,000 or holds more, or operatesrequires the Company or any Company Subsidiary, in each caseafter the Closing Date, any tangible property (other than real property), owned by any other Person, except for any lease to purchase or agreement under which spend $5,000,000 or more over the aggregate annual rental payments do not exceed $500,000life of such Contract;
(iii) any Contract under which that relates to the creation, incurrence, assumption or guarantee of Indebtedness of the Company or its any Company Subsidiary in an amount in excess of $100,000 (except for such Indebtedness between the Company and any of the wholly owned Company Subsidiaries is lessor of or permits any third party to hold or operatebetween the wholly owned Company Subsidiaries, in each case, any tangible property (other than real property), owned or controlled guarantees by the Company of Indebtedness of any of the wholly owned Company Subsidiaries and guarantees by any of the Company Subsidiaries of Indebtedness of the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000other wholly owned Company Subsidiary);
(iv) any (A) joint ventureContract that involves any exchange-traded or over-the-counter swap, profit-sharingforward, partnershipfuture, collaborationoption, co-promotioncap, commercialization floor or research or development Contractcollar financial contract, or similar Contractany other interest-rate, in each casecommodity price, which requires, equity value or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)foreign currency protection contract;
(v) any Contract that (A) limits relates to the formation, creation, operation, management or purports to limitcontrol of a material partnership, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” joint venture or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingarrangement;
(vi) any Contract requiring containing (A) any future capital commitment or capital expenditure (or series covenant limiting in any material respect the right of capital expenditures) by the Company or its any Company Subsidiary to engage in any line of business or to compete with any Person in any line of business or geographic area, (B) a “most favored nation” clause or other term providing preferential pricing or treatment to a third party, or (C) a right of first refusal or right of first offer or similar right or that limits the ability of the Company or any of the Company Subsidiaries in to sell, transfer, pledge or otherwise dispose of assets or any business with an amount aggregate value in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement100,000;
(vii) any Contract requiring the Company any capital commitment or its Subsidiaries to guarantee the Liabilities capital expenditures (including any series of any Person (other than the Company or a Subsidiaryrelated expenditures) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000600,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make with any loan, advanceSignificant Customer, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregateSignificant Supplier (other than, in an amount in excess of $200,000 or made any capital contribution to, or other investment ineach case, any Personnonmaterial purchase or sale order);
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulecollective bargaining agreement or similar agreement with a labor union or representative;
(x) any Contract with Company Benefit Plan that provides for acceleration of any Person (A) pursuant to which equity incentive, or the Company or its Subsidiaries (or Parent or any payment of its Affiliates after the Closing) is or may be required to pay milestones, royalties severance or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right benefits upon termination of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyemployment;
(xi) any Contract for that relates to the acquisition or disposition of any portion of the business, assets or business properties (whether by merger, sale of stock, sale of assets or otherwise) (A) for aggregate consideration in excess of $1,000,000 that was entered into on or after January 1, 2015 or (B) that otherwise contains material continuing rights or obligations of the Company or its Subsidiaries or for the acquisition by the any Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationSubsidiary;
(xii) any settlement, conciliation Contract that contains any provision that limits or similar Contract restricts (Aor purports to limit or restrict) requiring monetary payments by the ability of the Company or its any of the Company Subsidiaries after to make distributions or declare or pay dividends in respect of their Equity Interests, in each case, other than the date articles of this Agreement, incorporation and bylaws (Bor equivalent organizational documents) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on of the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andCompany Subsidiary;
(xiii) each collective bargaining agreement or other any Contract with that is between the Company or its any of the Company Subsidiaries, on the one hand, and any labor union, labor organization director or works council representing employees officer of the Company or its Subsidiariesthe Company Subsidiaries or any Person beneficially owning 5% or more of the outstanding Shares, on the other handhand (except for any Company Benefit Plan);
(xiv) any Contract settlement or similar agreement with any Governmental Authority or Order or Consent of a Governmental Authority to which the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries is subject involving future performance by the Company or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, the Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Subsidiaries;
(xv) any employmentmortgage, consultingpledge, bonussecurity agreement, commissions deed of trust or other Contract in respect of any indebtedness for borrowed money granting a Lien, other than a Permitted Lien, on any material property or asset of the Company or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;Company Subsidiary; and
(xvi) any employment Contract that is a license, royalty, settlement, pharmaceutical or consulting other collaboration agreement (excluding clinical trial agreements) or similar Contract with severancerespect to Intellectual Property (other than generally commercially available shrink wrap, change in control, retention clickware or similar arrangements, that will result in any obligation (absolute “off-the-shelf” software and Contracts pursuant to which a license of Intellectual Property is granted to or contingent) of by the Company or any Company Subsidiary that is incidental to the primary purpose of its Subsidiaries such Contract) that involved aggregate payments by or to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 any Company Subsidiary for the year ended March 31, 2018, or (B) is reasonably expected to involve aggregate payments by or to or from the Company or its Subsidiaries in excess any Company Subsidiary for the year ended March 31, 2019, of $1,500,000 500,000 or more, or over the life of the agreement andsuch Contract, in each case, that is not terminable by the applicable the Company of $1,000,000 or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticemore.
(b) With such exceptions that would not, individually or in the aggregate, reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) Each each Material Contract is valid valid, binding and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against respect to the Company or its and the Company Subsidiaries party thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto, except as such enforceability (x) may be limited by the counterparties thereto (subject to effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and (y) is subject to the effect of general principles of equity (regardless of whether considered in a proceeding at Law or in equity), (ii) none of the Company or its Subsidiaries andany Company Subsidiary has received any written claim of breach, to violation or default under or cancellation of any Material Contract, and none of the Company’s Knowledge, the counterparties thereto are not Company or any Company Subsidiary is in material breach or violation of, or default under, any Material Contract and (iii) to the Knowledge of the Company, no event has occurred that (with other party is in breach or without due notice or lapse of time or both) would result in a material breach violation of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoContract. The Company has made available to Parent true True and complete correct copies of all Material Contracts in effect as of have been made available to Parent prior to the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Abaxis Inc), Merger Agreement (Zoetis Inc.)
Material Contracts. (a) Section 3.13(a) As of the Company Disclosure Schedule contains a listing of all Contracts described in clauses date hereof:
(i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of (other than pursuant to Clause (I), which the Contracts listed on Section 3.13(aparties agree are Material Contracts) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money following Contracts of the Company or and its Subsidiaries (excluding any Contract that has expired or terminated in accordance with its terms and under which no party has any continuing rights or obligations other than those Contracts that either party thereto could reasonably claim has been extended or renewed as a result of the course of conduct of the parties thereto) (the “Material Contracts”) have been previously provided to the placing Backstop Purchasers and are available in the Dataroom as of the date hereof, and a Lien list of each such Contract (other than pursuant to Clause (I), which the parties agree are Material Contracts) is set forth in the Disclosure Schedule:
(A) Contracts that would be considered a Permitted Lienmaterial contract pursuant to Item 601(b)(10) on any material assets of Regulation S-K promulgated by the Commission, had the Company been the registrant referred to in such regulation;
(B) Contracts entered into after September 1, 2009 for (x) capital expenditures or properties the acquisition or construction of fixed assets, or (y) mergers, combinations, consolidations, reorganizations, restructurings, recapitalizations, acquisitions or repurchases involving the Company or any of its Subsidiaries, other than internal restructurings or such Contracts entered into in the ordinary course of business, or not material to the business of the Company, or not in excess of $10,000,000;
(iiC) any Contract Contracts under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains Subsidiaries has borrowed any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third partiesmoney from, or to solicit issued any potential employee note, bond, debenture or customerother evidence of indebtedness to, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryperson, in each case in excess of $200,0001,000,000 and the Company hereby represents and warrants that the aggregate amount of indebtedness incurred pursuant to such Contracts that are not Material Contracts does not exceed $10,000,000, other than any such Contract between or among any of the Company and any of its Subsidiaries;
(viiiD) Contracts (including any Contract under which the Company so called take or its Subsidiaries has, directly pay or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bkeepwell agreements) under which the Company or any of its Subsidiaries grants has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person, including the Company or another one of its Subsidiaries (in each case other than endorsements for the purpose of collection in the ordinary course of business), in each case in excess of $1,000,000 and the Company hereby represents and warrants that the aggregate amount of such guarantees incurred pursuant to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertysuch Contracts that are not Material Contracts does not exceed $10,000,000;
(xiE) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or Contracts under which the Company or any of its Subsidiaries has agreed to indemnify any continuing obligation person for any liabilities that is material to the Company and its Subsidiaries, taken as a whole (with respect to an “earn-out,” contingent purchase price which the Company has continuing obligations as of the date hereof), other than (x) payment indemnities of amounts less than $10,000,000, (y) any Contracts providing for indemnification of customers or suppliers, or (z) any Contracts providing for indemnification of other contingent or deferred payment obligationPersons entered into in the ordinary course of business;
(xiiF) any settlementMaterial partnership, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this AgreementJoint Venture, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement shareholders’ or other Contract similar Contracts with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handPerson;
(xivG) All Contracts with any Contract with Person containing any provision or covenant (x) prohibiting or limiting the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries to make engage in any payment material business activity, (y) imposing any material limitation on competition with any Person or incur solicitation of any Liability material customer or material client, or (z) imposing any material prohibition on the ability of any person to compete with the Company or any of its Subsidiaries, which in each case are material to the Company and its Subsidiaries, taken as a result whole, except for such Contracts which may be cancelled without material liability to the Company or any of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andits Subsidiaries upon less than 90-days notice;
(xviiH) Contracts (other than information technology contracts) in which the Company or any of its Subsidiaries have agreed to an exclusive relationship which is material to the business with a potential supplier, service provider or customer in excess of $10,000,000;
(I) Contracts with any Material Customer;
(J) Any other Contract (including any Contract for the performance future purchase of which requires either (Amaterials, supplies or equipment) material to the business that has or that the Company reasonably expects to have an aggregate future annual liability or annual payments to or from any person (other than by the Company or any of its Subsidiaries to any of the Company’s Subsidiaries or the Company, respectively) in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and10,000,000, in each case, that is not terminable by the applicable the Company or any of its Subsidiaries without penalty upon by notice of not more than ninety (90) days for a cost of less than thirty $1,000,000 and is not entered in the ordinary course of business; or
(30K) days’ prior written noticeAny Contract with a Related Party.
(iii) Each Material Contract that shall survive the Bankruptcy Cases is valid and binding on the Company or its Subsidiaries, as applicable, and, to the Knowledge of the Company’s Knowledge, the counterparties on each other person 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 that would not, individually or in the aggregate, have a Material Adverse Effect. Other than those caused as a result of the filing of the Bankruptcy Cases, neither the Company nor any of its Subsidiaries is in breach or default of any Material Contract to which it is a party and enforceable which shall survive the Bankruptcy Cases, except as has not had and would not reasonably be expected to have, individually or in accordance the aggregate, a Material Adverse Effect. To the Knowledge of the Company, no party to any Material Contract has repudiated any material provision thereof or terminated any Material Contract, which repudiation or termination would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Material Contract provides any party thereto (other than the Company or its Subsidiaries) with its terms against any right to access any premises of the Company or its Subsidiaries and, to remove or otherwise obtain any property of the Company’s Knowledge, Company or any of its Subsidiaries from such premises without the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement consent of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries andSubsidiaries, which removal or obtaining of property would reasonably be expected to have, individually or in the Company’s Knowledgeaggregate, the counterparties thereto are not in material breach of, or default under, any a Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Samples: Commitment Agreement (Cooper-Standard Holdings Inc.), Commitment Agreement
Material Contracts. Except for the Existing Senior Secured Debt Documents and the other agreements set forth on Schedule 6.18 as of the Closing Date, there are no (a) Section 3.13(aemployment agreements covering the management of any Obligor, (b) collective bargaining agreements or other similar labor agreements covering any employees of the Company Disclosure Schedule contains a listing of all Contracts described in clauses any Obligor, (ic) through (xiii) below agreements for managerial, consulting or similar services to which, as of the date of this Agreement, the Company or its Subsidiaries which any Obligor is a party or by which they are it is bound, (d) agreements regarding any Obligor, its assets or operations or any investment therein to which any of its equity holders is a party or by which it is bound, (e) real estate leases, Intellectual Property licenses or other lease or license agreements to which any Obligor is a party, either as lessor or lessee, or as licensor or licensee (other than a Company Benefit Planlicenses arising from the purchase of “off the shelf” products), and that are not expired (f) customer, distribution, marketing or have not been terminated and not including any Contracts pursuant supply agreements to which any Obligor is a party, in each case with respect to the Company has with no material outstanding preceding clauses (a) through (e) requiring payment of more than $250,000 in any year, (g) partnership agreements to which any Obligor is a general partner or executory obligations joint venture agreements to which any Obligor is a party, (h) third party billing arrangements to which any Obligor is a party, or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating other agreements or instruments to Indebtedness for borrowed money which any Obligor is a party, and the breach, nonperformance or cancellation of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractwhich, or similar Contractthe failure of which to renew, in each case, which requires, or would could reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life have a Material Adverse Effect. Each of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, Material Contracts is in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed full force and effect on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, hereof and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, the Transaction Documents will not give rise to a right of termination in favor of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof party (other than purchase ordersany Obligor) to any Material Contract, invoices, and similar confirmatory or administrative documents that are ancillary except for such Material Contracts the noncompliance with which would not reasonably be expected to the main contractual relationship between the parties to have a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Adverse Effect.
Appears in 2 contracts
Samples: Note Purchase Agreement (Staffing 360 Solutions, Inc.), Note Purchase Agreement (Staffing 360 Solutions, Inc.)
Material Contracts. (a) Section 3.13(a) of Except for the Company Disclosure Contracts disclosed in Schedule contains a listing of all Contracts described in clauses 3.06 (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”). True, correct and complete copies of with respect to the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available Business, SLI is not a party to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating to Indebtedness lease (whether of real or personal property) providing for borrowed money annual rentals of the Company S 50,000 or its Subsidiaries or to the placing more that cannot be terminated on not more than 60 days’ notice without payment by SLI of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariespenalty;
(ii) any Contract under which agreement for the Company purchase of materials, supplies, goods, services, equipment or its Subsidiaries is lessee other assets providing for either (A) annual payments by SLI of $50,000 or holds more or operates(B) aggregate payments by SLI of $50,000 or more, in each case, case that cannot be terminated on not more than 60 days’ notice without payment by SLI of any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000material penalty;
(iii) any Contract under which sales, distribution or other similar agreement providing for the Company sale by SLI of materials, supplies, goods, services, equipment or its Subsidiaries is lessor other assets that provides for annual payments to SLI of $100,000 or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000more;
(iv) any (A) joint venture, profit-sharing, material partnership, collaboration, co-promotion, commercialization joint venture or research or development Contract, or other similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)agreement;
(v) any Contract agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(vi) any agreement relating to indebtedness for borrowed SLI money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $50,000;
(vii) any agreement, other than this Agreement and the Transaction Documents, that (A) limits or purports to limit, in any material respect, respect the freedom of SLI or the Company or its Subsidiaries Business 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;area; or
(viii) any material agreement with or for the benefit of any Affiliate of SLI.
(b) Each Material Contract required to be disclosed pursuant to this Section is a valid and binding agreement of SLI and is in full force and effect, and none of SLI or, to the Knowledge of SLI, any other party thereto is in default or breach in any respect under the terms of any such Material Contract, except for any such defaults or breaches which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advancewould not have, or assignment of payment would not be reasonably expected to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Adverse Effect.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Asset Purchase and Contribution Agreement (Supernus Pharmaceuticals Inc), Asset Purchase and Contribution Agreement (Supernus Pharmaceuticals Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Subsections (i) through (xiiivii) below of Section 4.16 of the Parent Disclosure Schedule contain a list of the following types of Contracts to which, which Parent or any Parent Subsidiary is a party as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities hereof (such Contracts as are required to be set forth on in Section 3.13(a4.16(a) of the Company Parent Disclosure Schedule, Schedule being referred to as the “Material Parent Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) all Contracts that are not for the purchase, sale, processing or tolling of metal and that are reasonably expected to involve consideration of more than $500,000, in the aggregate, in any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariescalendar year;
(ii) all Contracts evidencing outstanding indebtedness for money borrowed and capital lease obligations (including, without limitation, any Contract under pursuant to which the Company Parent or its Subsidiaries is lessee any Parent Subsidiary has sold, conveyed or otherwise transferred, or granted a security interest in, receivables) in a principal amount of $1,000,000 or holds or operates, in each case, any tangible property more (other than real property“Parent Debt Agreement”), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which all Contracts for the Company purchase, sale, processing or its Subsidiaries is lessor tolling of or permits any third party to hold or operate, metal for an amount in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed excess of $200,0005,000,000;
(iv) all leases of real property leased for the use or benefit of Parent or any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Parent Subsidiary;
(v) any Contract all Contracts that (A) limits limit, or purports purport to limit, in the ability of Parent or any material respect, the freedom of the Company or its Subsidiaries Parent Subsidiary to engage or compete in any line of business or with any Person person or entity or in any geographic area or that would so limit or purport to limit, in during any material respect, the operations period of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingtime;
(vi) all material broker, distributor, dealer, manufacturer’s representative, franchise, agency, market research, marketing consulting and advertising Contracts to which Parent or any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;Parent Subsidiary is a party; and
(vii) all management Contracts (excluding Contracts for employment) and Contracts with other consultants, including any Contract requiring Contracts involving the Company payment of royalties or its Subsidiaries other amounts calculated based upon the revenues or income of Parent or any Parent Subsidiary or income or revenues related to guarantee the Liabilities any product of Parent or any Person (other than the Company or a Subsidiary) or pursuant Parent Subsidiary to which Parent or any Person (other than the Company or Parent Subsidiary is a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;party.
(viiib) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orExcept as would not reasonably be expected, individually or in the aggregate, in an amount in excess of $200,000 to prevent or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the materially delay consummation of the transactions contemplated by Transactions or otherwise prevent or materially delay Parent from performing its obligations under this AgreementAgreement and would not reasonably be expected, termination of employment individually or both; and
(xvii) any other Contract in the performance of which requires either (A) annual payments aggregate, to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.have a Parent Material Adverse Effect:
(i) Each each Material Parent Contract is a legal, valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), agreement;
(ii) the Company neither Parent nor any Parent Subsidiary is in breach or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violation of, or default under, any Material Parent Contract and and, as of the date hereof, neither Parent nor any Parent Subsidiary has received any claim of default under any Material Parent Contract;
(iii) to Parent’s knowledge, as of the date hereof, no event has occurred that (with other party is in breach or without due notice or lapse of time or both) would result in a material breach violation of, or default under, any Material Contract by Parent Contract; and
(iv) neither the Company execution of this Agreement nor the consummation of any Transactions shall constitute a default under, give rise to cancellation rights under, or its Subsidiaries or, to otherwise adversely affect any of the Company’s Knowledge, the counterparties theretomaterial rights of Parent or any Parent Subsidiary under any Material Parent Contract. The Company Parent has furnished or made available to Parent the Company true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersParent Contracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 2 contracts
Samples: Merger Agreement (Imco Recycling Inc), Merger Agreement (Commonwealth Industries Inc/De/)
Material Contracts. (a) Section 3.13(a) 3.15 of the Company Parent Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, sets forth as of the date hereof a true and complete list of this Agreementthe following Contracts (other than purchase orders and invoices) to which the Transferred Companies, the Company their respective Subsidiaries or Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (to the extent applicable to the Business) is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any is bound (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(a) 3.15 of the Company Parent Disclosure Schedule, together with each Contract entered into after the date hereof that would otherwise be required to be listed on Section 3.15 of the Parent Disclosure Schedule, the “Material Contracts”). True, correct and complete copies ):
(1) agreements relating to Debt in an amount in excess of the $500,000;
(2) Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to containing a minimum purchase requirement for Parent or its agents Subsidiaries (other than the Transferred Companies or representativesany Subsidiaries thereof) (but related to the Business) or the Transferred Companies or their respective Subsidiaries to purchase during the 12-month period immediately following, together with all amendments thereto):or pursuant to which Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (but on behalf of the Business) or the Transferred Companies or their respective Subsidiaries have purchased during the 12-month period immediately preceding, January 28, 2007, in the aggregate, a minimum of $30 million of goods and/or services on an annual basis;
(i3) Contracts containing a minimum supply commitment for Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (but related to the Business) or the Transferred Companies or their respective Subsidiaries to sell during the 12-month period immediately following, or pursuant to which Parent or its Subsidiaries (other than the Transferred Companies or any Subsidiaries thereof) (but on behalf of the Business) or the Transferred Companies or their respective Subsidiaries have sold during the 12-month period immediately preceding, January 28, 2007, in the aggregate, a minimum of $30 million of goods and/or services on an annual basis;
(4) any Contract containing any future capital expenditure obligations of the Transferred Companies or their respective Subsidiaries (or otherwise relating to the Business) in excess of $5 million;
(5) any joint venture, partnership, limited liability company or other similar agreement involving co-investment between a Transferred Company or its Subsidiaries and a third party;
(6) any Contract relating to Indebtedness for borrowed money the acquisition or disposition of the Company or its Subsidiaries or to the placing any business (whether by merger, sale of a Lien (other than a Permitted Lien) on any material stock, sale of assets or properties of otherwise) under which the Company Transferred Companies or its Subsidiariestheir respective Subsidiaries will have obligations with respect to an “earn out”, contingent purchase price, or similar contingent payment obligation or a material indemnity obligation after the Closing;
(ii7) any Contract under which the Company containing covenants restricting or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, limiting in any material respect, respect the freedom ability of the Company Transferred Companies or its their respective 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)geographic area; and
(xiii) each 8) any collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any a labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium union or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)labor organization.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (HSI IP, Inc.), Purchase and Sale Agreement (Home Depot Inc)
Material Contracts. (a) Section 3.13(a) Except as set forth on Schedule 5.15 attached hereto or otherwise reflected in the Xxxxxxx Financial Statements, neither Xxxxxxx, its Subsidiaries nor any of the Company Disclosure Schedule contains their respective Assets, businesses or operations, is a listing of all Contracts described in clauses party to, or is bound or affected by, or receives benefits under, (i) through any employment, severance, termination, consulting or retirement Contract providing for aggregate payments to any Person in any calendar year in excess of $50,000, (xiiiii) below any Contract relating to whichthe borrowing of money by Xxxxxxx or any Subsidiary or the guarantee by Xxxxxxx or any Subsidiary of any such obligation (other than Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, trade payables, Federal Home Loan Bank advances and Contracts relating to borrowings or guarantees made in the ordinary course of business), and (iii) any other Contract or amendment thereto would be required to be filed as an exhibit to a Form 10-K filed by Xxxxxxx with the SEC as of the date of this Agreement that has not been filed by Xxxxxxx with the SEC or incorporated by reference as an exhibit to Xxxxxxx'x Annual Report on Form 10-K for the fiscal year ended December 31, 1998 (together with all Contracts referred to in Sections 5.10 and 5.14(a) of this Agreement, the Company or its Subsidiaries "Xxxxxxx Contracts"). With respect to each Xxxxxxx Contract, (i) the Contract is a party or by which they are boundin full force and effect, (ii) neither Xxxxxxx nor Bank is in Default thereunder, other than a Company Benefit Plan, and that Defaults which are not expired or have not been terminated and not including any Contracts pursuant reasonably likely to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Material Adverse Effect on Xxxxxxx, or other investment in, any Person;
(ixiii) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or neither Xxxxxxx nor its Subsidiaries has repudiated or waived any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) material provision of any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one handsuch Contract, and (iv) no other party to any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any such Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableis, to the Company’s Knowledgeknowledge of Xxxxxxx, the counterparties theretoin Default in any respect, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto than Defaults which are not reasonably likely to have, individually or in material breach ofthe aggregate, a Material Adverse Effect on Xxxxxxx, or default under, has repudiated or waived any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach ofprovision thereunder. Except as set forth on Schedule 5.15 attached hereto, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory indebtedness of Xxxxxxx or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract any Subsidiary for money borrowed is prepayable at any time by Xxxxxxx or group of Contracts and that, in each case, do not contain any material executory Subsidiary without penalty or continuing terms, conditions, obligations or rights)premium.
Appears in 2 contracts
Samples: Merger Agreement (Haywood Bancshares Inc), Merger Agreement (Century South Banks Inc)
Material Contracts. (a) Section 3.13(aExcept for contracts reflected as exhibits to its reports and other documents required to be filed under the 1934 Act and the Securities Act of 1933 (the “1933 Act”) of (collectively, the Company “SEC Reports”), including Monroe’s Annual Report on Form 10-K for the year ended December 31, 2009, and Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, or as set forth in the Monroe Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, the Company neither Monroe nor any of its Subsidiaries, nor any of their respective assets, businesses, or its Subsidiaries operations, is a party to, or by which they are boundis bound or affected by, other than a Company Benefit Planor receives benefits under, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract contract relating to Indebtedness for borrowed the borrowing of money by Monroe or any of the Company or its Subsidiaries or to the placing guarantee by Monroe or any of a Lien its Subsidiaries of any such obligation (other than a Permitted Lien) on any material assets contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or properties guarantees made in the ordinary course of the Company or its Subsidiaries;
business), (ii) any Contract under which contract containing covenants that limit the Company ability of Monroe or its Subsidiaries is lessee any of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person Person, or in to hire or engage the services of any area Person, or that would so limit involve any restriction of the geographic area in which, or purport to limitmethod by which, in any material respect, the operations of Parent Monroe or any of its Affiliates after the Closing, Subsidiaries may carry on its business (Bother than as may be required by Law or any Governmental Authority) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third partiesas each are hereinafter defined), or to solicit any potential employee or customer, in each case, in any material respect or contract that would so limit or purports to limit, in any material respect, Parent requires it or any of its Affiliates after Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the Closing;
subject matter of such contract, (viiii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarycontract for, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other investment inbusiness combination, any Person;
(ix) any Contract required or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent Monroe or any of its Affiliates after the ClosingSubsidiaries, (iv) is any other contract or may amendment thereto that would be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants be filed as an exhibit to any Person any right SEC Report (as described in Items 601(b)(4) and 601(b)(10) of first refusal, right of first negotiation, option Regulation S-K under the 0000 Xxx) that has not been filed as an exhibit to purchase, option or incorporated by reference in Monroe’s SEC Reports filed prior to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivv) any Contract with the Company lease of real or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company personal property providing for annual lease payments by or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company Monroe or its Subsidiaries in excess of $300,000 100,000 per annum other than financing leases entered into in the ordinary course of business in which Monroe or any of its Subsidiaries is the lessor, or (Bvi) aggregate payments to any contract that involves expenditures or from the Company receipts of Monroe or any of its Subsidiaries in excess of $1,500,000 over 100,000 per year not entered into in the life ordinary course of business consistent with past practice. The contracts of the agreement andtype described in the preceding sentence, in each case, that is whether or not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of Monroe’s Material Contracts (i) that is reflected as an exhibit to any SEC Report, (ii) 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 (iii) that is disclosed in the Monroe Disclosure Schedule, or would be required to be so disclosed if in effect on the date of this Agreement: (A) each such Material Contract is in full force and effect; (B) neither Monroe nor any of its Subsidiaries is in material default thereunder with respect to each Material Contract, as such term or concept is defined in each such Material Contract; (C) neither Monroe nor any of its Subsidiaries has repudiated or waived any material provision of any such Material Contract; and (D) no other than purchase ordersparty to any such Material Contract is, invoicesto Monroe’s knowledge, in material default in any material respect. True copies of all Material Contracts, including all amendments and similar confirmatory or administrative documents supplements thereto, that are ancillary not filed as exhibits to SEC Reports are attached to the main contractual relationship between Monroe Disclosure Schedule.
(b) Neither Monroe 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 Monroe’s own account or for the parties to a particular Contract account of one or group more of Contracts and that, in each case, do not contain any material executory its Subsidiaries or continuing terms, conditions, obligations or rights)their respective customers.
Appears in 2 contracts
Samples: Merger Agreement (Old National Bancorp /In/), Merger Agreement (Monroe Bancorp)
Material Contracts. (a) Except as disclosed in Section 3.13(a) 5.14 of the Company Foilmark Disclosure Schedule contains Memorandum or otherwise reflected in the Foilmark Financial Statements, none of the Foilmark Companies, nor any of their respective Assets, businesses, or operations, is a listing of all Contracts described in clauses party to, or is bound or affected by, or receives benefits under, (i) through any employment, severance, termination, consulting, or retirement Contract providing for payments to any Person, except for Contracts referred to in Section 5.13(a) of this Agreement and unwritten Contracts with respect to the employment of hourly personnel terminable at will or upon statutorily required notice, (xiiiii) below any Contract relating to whichthe borrowing of money by any Foilmark Company or the guarantee by any Foilmark Company of any such obligation (other than Contracts for purchase money indebtedness in an aggregate amount not exceeding $50,000, Contracts evidencing trade payables, and Contracts relating to borrowings or guarantees made in the ordinary course of business), (iii) any Contract which prohibits or restricts any Foilmark Company from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract between or among Foilmark Companies, (v) any Contract involving the licensing or use of Intellectual Property, (vi) any lease of real property as lessee or lessor, (vii) any Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the ordinary course of business and that are either (x) terminable by each Foilmark Company that is a party thereto upon not more than sixty (60) days notice without payment or penalty or (y) has a remaining term of not more than six months from the date of this Agreement and involves payments not in excess of $50,000 per year), and (viii) any other Contract or amendment thereto that would be required to be filed as an exhibit to a Form 10-K filed by Foilmark with the SEC as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Agreement (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(iContracts referred to in Sections 5.9 and 5.13(a) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing"Foilmark Contracts"); and
(xiii) . With respect to each collective bargaining agreement or other Foilmark Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees except as disclosed in Section 5.14 of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
Foilmark Disclosure Memorandum: (i) Each Material the Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), effect; (ii) the no Foilmark Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are is in Default thereunder except for any such Default as would not in material breach of, or default under, any have a Material Contract and Adverse Effect on Foilmark; (iii) no event Foilmark Company has occurred that repudiated or waived any material provision of any such Contract; and (with or without due notice or lapse of time or bothiv) would result in a material breach of, or default under, no other party to any Material such Contract by the Company or its Subsidiaries oris, to the Company’s KnowledgeKnowledge of Foilmark, the counterparties theretoin Default in any respect, or has repudiated or waived any material provision thereunder. The Company has made available to Parent true and complete copies of all Material Contracts Except as disclosed in effect as Section 5.14 of the date hereof (other than purchase ordersFoilmark Disclosure Memorandum, invoices, and similar confirmatory all of the indebtedness of any Foilmark Company for money borrowed is prepayable at any time by such Foilmark Company without penalty or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)premium.
Appears in 2 contracts
Samples: Merger Agreement (Simon Robert J), Merger Agreement (Holopak Technologies Inc)
Material Contracts. (a) Section 3.13(a) Schedule 4.17 of the Company Disclosure Schedule contains a listing true and complete list of all Contracts described in clauses (iother than purchase orders and invoices) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party (a) which is a joint venture, partnership or by other similar agreement involving co-investment with a third party; (b) under which they are boundthe Company or any of its Subsidiaries has created, other than incurred, assumed or guaranteed indebtedness for borrowed money, or any capitalized lease obligation, or any agreement under which it has granted a Lien on any of its assets, tangible or intangible (but with a value in excess of $100,000), or any currency or interest rate swap, collar or hedge agreement; (c) whereby the Company Benefit Planor any of its Subsidiaries has an obligation to make an investment in or loan to any Person in excess of $100,000; (d) that contains a minimum purchase requirement for the Company and its Subsidiaries to purchase during the 12-month period immediately following, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities and its Subsidiaries have purchased during the 12-month period immediately preceding, the Balance Sheet Date, in the aggregate, a minimum of $100,000 of goods and/or services on an annual basis; (such Contracts as are required to be set forth on Section 3.13(ae) of that contains a minimum supply commitment for the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries to sell during the 12-month period immediately following, or pursuant to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or and its Subsidiaries is lessee of or holds or operateshave sold during the 12-month period immediately preceding, the Balance Sheet Date, in each casethe aggregate, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess a minimum of $1,000,000 over the life 100,000 of the Contract or goods and/or services on an annual basis; (Bf) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions covenants restricting or purporting to restrict limiting the ability of the Company or Company, any of its Subsidiaries to sellor any of their Affiliates (including, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respectwithout limitation, Parent or any of its Affiliates from and after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life consummation of the agreement;
(vii) any Contract requiring the Company Offer or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is to compete in any business or may be required to pay milestones, royalties with any person or other contingent payments based on in any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or geographic area; (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (Cg) that imposes contemplates any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiiiextraordinary transaction(s) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of by the Company or any of its Subsidiaries to make any payment or incur any Liability as a result and/or shares of the consummation Company held by its Affiliates, including letters of intent, confidentiality, non-solicitation and other similar agreements or arrangements; (h) that contains any indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, where the contingent rights or obligations reasonably would be expected to exceed $100,000; (i) to which any agency or department of the transactions contemplated by this Agreement, termination United States federal government is a counterparty; (j) for the lease of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments personal property to or from the Company or its Subsidiaries any Person providing for lease payments in excess of $300,000 or 100,000 per annum; (Bk) aggregate payments to or from that involve the use of Intellectual Property by the Company or and its Subsidiaries and which require annual license or royalty payments in excess of $1,500,000 over the life of the agreement and100,000; or (l) with customers, in each casemanufacturers, that is not terminable by the applicable distributors, dealers, manufacturer’s representatives or sales agents with whom the Company deals which involve (or its Subsidiaries without penalty upon less could reasonably be expected to involve) the receipt or payment, whether contingent or otherwise, by or to the Company of more than thirty (30) days’ $100,000 in fiscal year 2007. The Company has made available to Parent prior written notice.
(i) to the date hereof a true and correct copy of each such Contract. Each Material Contract required to be so listed is valid and binding on the Company or its SubsidiariesSubsidiary, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties thereto, on each counterparty and is in full force and effect effect, and enforceable in accordance with its terms against neither the Company or nor any of its Subsidiaries andSubsidiaries, nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any Material Contract such Contract, and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, any Material Contract thereunder by the Company or any of its Subsidiaries Subsidiaries, or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase ordersparty thereto, invoicesexcept for such failures to be valid, binding or in full force and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts effect and such breaches and defaults that, individually or in each casethe aggregate, do have not contain any material executory or continuing terms, conditions, obligations or rights)had and would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Watsco Inc), Merger Agreement (Acr Group Inc)
Material Contracts. (a) Section 3.13(a3.8(a) of the Company Disclosure Schedule contains Schedules sets forth a listing list of all Contracts described in clauses (i) through (xiii) below the following Contracts, other than the Employee Benefit Plans, to whichwhich the Company or any of its Subsidiaries is, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are each Contract required to be set forth on Section 3.13(a3.8(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.8(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries or to the placing of a Lien (other than a any Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;
(ii) any Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any material tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000500,000;
(iv) any (A) Contract for any material joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization collaboration or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)strategic alliance;
(v) 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 operations of Parent Priveterra or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions restrictions, or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or any of its Subsidiaries to sell, manufacture, develop, commercialize, test or research productsthe Company Products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent Priveterra or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually 500,000 annually, or (B) $1,000,000 1,500,000 over the life of the agreement;
(vii) any Contract requiring the Company or any of its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryany of its Subsidiaries, in each case in excess of $200,000500,000;
(viii) any Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person, in each case in excess of $500,000;
(ix) any Contract required to be disclosed on Section 3.19 3.20 of the Company Disclosure ScheduleSchedules;
(x) any Contract with any Person (A) pursuant to which the Company or any of its Subsidiaries (or Parent Priveterra or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events events, in each case, relating to Company Products, or (B) under which the Company or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Company Business Intellectual Property;
(xi) any Contract (A) for the employment or engagement of any Key Employee of the Company or any of its Subsidiaries, or (B) providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xii) any Contract (A) executed with any current director, manager, officer, employee, Contingent Worker or other individual service provider of the Company or any of its Subsidiaries that provides for severance benefits, or (B) entered into by the Company or any of its Subsidiaries that constitutes a collective bargaining agreement or any other agreement executed between the Company or its Subsidiary, as applicable, and a union or similar organization;
(xiii) any Contract for the disposition of any material portion of the assets or business of the Company or any of its Subsidiaries or for the acquisition by the Company or any of its Subsidiaries of the material assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course ordinary course of Businessbusiness), or under which the Company or any of its Subsidiaries has any continuing obligation with respect to an “earn-out,” ”, contingent purchase price or other contingent or deferred payment obligation;
(xiixiv) any Contract pursuant to which the Company or any of its Subsidiaries (A) obtains any right to use, or covenant not to be sued under, any Intellectual Property Right (other than any license for Off-the-Shelf Software), or (B) grants any right to use, or covenant not to be sued under, any Intellectual Property Right (other than non-exclusive licenses granted in the ordinary course of business consistent with past practice);
(xv) any settlement, conciliation or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by the Company or its Subsidiaries after the date of this AgreementAgreement by the Company or any of its Subsidiaries, (B) with a Governmental Authority Entity or which relates to alleged criminal wrongdoing, (C) that imposes imposes, at any time in the future, any material, non-monetary obligations on the Company or any of its Subsidiaries (or Parent Priveterra or any of its Affiliates after the Closing); and
, or (xiiiD) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of which requires the Company or any of its Subsidiaries to make any payment accept or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothconcede material injunctive relief; and
(xviixvi) any other Contract the performance of which requires either (A) annual payments to or from by the Company or any of its Subsidiaries in excess of $300,000 500,000, or (B) aggregate payments to or from by the Company or any of its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries Subsidiary, as applicable, without penalty upon less than thirty sixty (3060) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its SubsidiariesSubsidiary, as applicable, and, to the knowledge of the Company’s Knowledge, the counterparties counterparty thereto, and is in full force and effect effect, and enforceable in accordance with its terms against (ii) the Company or and its Subsidiaries and, to the knowledge of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcythereto, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach ofContract, or default under, any Material Contract by the Company or its Subsidiaries orand, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as knowledge of the date hereof (other than purchase ordersCompany, invoicesthere are no facts or circumstances which would, and similar confirmatory or administrative documents that are ancillary which would reasonably be expected to, lead to the main contractual relationship between the parties to a particular Contract such breach or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)default.
Appears in 2 contracts
Samples: Business Combination Agreement (Strathspey Crown Holdings Group, LLC), Business Combination Agreement (Priveterra Acquisition Corp.)
Material Contracts. (a) Section 3.13(aSchedule 3.11(a) of the Company Seller Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Letter sets forth as of the date hereof a list of this Agreementthe following Contracts (other, in each case, than real property leases and Excluded Contracts) (i) that relate primarily to the Company Business to which an Asset Selling Entity or Seller or any of its Subsidiaries Affiliates is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant (ii) to which the a Conveyed Company has with no material outstanding or executory obligations or Liabilities is a party (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”). True, true, correct and complete copies of which and all amendments thereto (other than missing documents identified in writing by Seller or Purchaser prior to the Contracts listed on Section 3.13(adate hereof which do not, individually or in the aggregate, materially change the terms, rights or obligations under the applicable Material Contracts) (and reasonably complete and accurate written descriptions of the Company Disclosure Schedule have previously been all oral Material Contracts) Seller has made available to Parent or its agents or representatives, together with all amendments thereto):Purchaser prior to the date hereof:
(i) any Contract relating to Indebtedness for borrowed money each Equipment Lease which entails rental payments in excess of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries$1,000,000 per annum;
(ii) each material Contract between Seller and/or any Contract under which the Company or of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property Affiliates (other than real propertythe Conveyed Companies) or any of the officers or directors of Seller and/or any of its Affiliates (other than the Conveyed Companies), owned by on the one hand, and any Asset Selling Entity and/or Conveyed Company, on the other Personhand, except for any lease or agreement under other than employment contracts which the aggregate annual rental payments do not exceed provide for annual base salary in excess of $500,000250,000 in any given year;
(iii) any each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee or other Contract under which (excluding items set forth on Schedule 3.13(a) or Schedule 3.13(b) of the Company or its Subsidiaries is lessor Seller Disclosure Letter) in respect of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any evidencing (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on Indebtedness of any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Conveyed Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiaryAssumed Debt, in each case in excess of $200,000500,000;
(iv) each customer Contract (other than a Contract with a distributor) with payments to the applicable Asset Selling Entity or Conveyed Company in excess of $16,000,000 for the last completed fiscal year;
(v) each outstanding Contract with vendors of the Business with payments by the applicable Asset Selling Entity or Conveyed Company in excess of $6,000,000 for the last completed fiscal year;
(vi) each Contract materially limiting or purporting to materially limit the freedom of the applicable (A) Seller Entity to engage in the Business or compete with any Person in connection with such Seller Entity’s conduct of the Business or (B) Conveyed Company to engage in the Business or compete with any Person in connection with such Conveyed Company’s conduct of the Business;
(vii) each acquisition, merger, consolidation, recapitalization or similar agreement or letter of intent related to the acquisition of a business or line of business entered into in the previous three (3) years for aggregate consideration under such Contract in excess of $2,500,000, other than Contracts in which the applicable transaction has been consummated and there are no earnouts, contingent payments, indemnification or other obligations ongoing or outstanding in excess of $1,000,000 individually or in the aggregate;
(viii) each distributor Contract which involves revenues for the applicable Asset Selling Entity or Conveyed Company in excess of $16,000,000 for the last completed fiscal year;
(ix) each Contract regarding the formation or participation in any material equity joint venture, material joint product development Contract (excluding Contracts with customers entered into in the ordinary course of business consistent with past practice) or similar material arrangement that involves a sharing of revenues, profits, losses, costs or liabilities, with a third party;
(x) each Contract for the licensing or use of Intellectual Property that is material to the Business taken as a whole or the development of Intellectual Property that is material to the Business taken as a whole, other than (A) non-exclusive licenses entered into in the ordinary course of business consistent with past practice, (B) development agreements using Seller’s standard forms of consulting and/or development agreements, (C) Contracts with customers entered into in the ordinary course of business consistent with past practice and which contain only non-exclusive licenses and (D) Information Technology Contracts;
(xi) each Contract entered into in the previous three (3) years for the purchase or sale of Intellectual Property that is or, in the case of sold Intellectual Property, was material to the Business taken as a whole;
(xii) each Information Technology Contract exclusively used in the Business which involves payments in excess of $2,500,000 for the last completed fiscal year, other than commercially available off-the-shelf Software, hosting or similar services licensed or made available pursuant to shrink-wrap, click wrap licenses or subscription agreements that are not material to the Business;
(xiii) each Contract granting to any Person a first refusal, first offer or similar preferential right to purchase or acquire any material Purchased Asset, any equity or other interest in any Conveyed Company or any assets of any Conveyed Company;
(xiv) each Contract under which (A) any Conveyed Company has directly or indirectly guaranteed liabilities or obligations of Seller or any of its Affiliates (other than a Conveyed Company) or (B) Seller or any of its Affiliates (other than a Conveyed Company) has guaranteed any liabilities or obligations of any Conveyed Company, in each case in excess of $500,000;
(xv) each Contract which requires the purchase of all or substantially all of a particular product or material from a supplier or containing a minimum purchase or supply commitment in each case in excess of $6,000,000 per annum;
(xvi) each Contract which provides for consignment of goods with a value in excess of $16,000,000 or requires the Seller or any of its Affiliates (including the Conveyed Companies) to maintain inventory with a value in excess of $16,000,000, in each case, in connection with the Business;
(xvii) each (A) Contract for the employment of, or receipt of any services from, the President of the Business and any of his direct reports and (B) Contract which provides for a severance, termination, retention, change in control or similar payment to the President of the Business and any of his direct reports; and
(xviii) each Contract relating to a Retention Bonus. Notwithstanding anything to the contrary in this Agreement, it is agreed that (x) Material Contracts that are purchase orders, order acknowledgements, invoices or similar documents for the purchase or sale of products or services shall not be required to be listed on Schedule 3.11(a) of the Seller Disclosure Letter (provided that the identity of any customer, supplier or other Person that is a counterparty to such a Material Contract is listed on the applicable subsection of Schedule 3.11(a) of the Seller Disclosure Letter), (y) true, correct and complete copies of Material Contracts that are purchase orders or invoices for the purchase or sale of products or services shall not be required to have been made available to Purchaser if they do not deviate in any material respect from the standard forms made available to Purchaser prior to the date hereof and (z) Contracts for the employment of, or receipt of any services from, any director or officer of Seller, any Asset Selling Entity, or any Conveyed Company or its Subsidiaries hasany other Business Employee or Shared Service Employee on a full-time, directly part-time, consulting or indirectlyother basis providing for an annual base salary in excess of $175,000, made and each Contract which provides for a severance, termination, retention, change in control or agreed to make any loan, advance, or assignment of similar payment to any such Person outside shall be deemed “Material Contracts” for purposes of this Agreement but shall not be required to be listed on Schedule 3.11(a) of the Ordinary Course Seller Disclosure Letter or, subject to Section 5.5(q), made available to Purchaser.
(b) Each Contract set forth on Schedule 3.11(a) of Business the Seller Disclosure Letter is binding and in full force and effect with respect to the Asset Selling Entity or Conveyed Company party thereto and, to the Knowledge of Seller, each other party thereto in accordance with its terms and there exists no breach (other than breaches that are cured or are curable within the applicable cure period, if any, and other than in respect of ordinary course product warranty claims), default or event of default (or occurrence or event that with notice or lapse of time or both would result in a breach, default or event of default) by the applicable Asset Selling Entity or Conveyed Company or, to the Knowledge of Seller, any other party to any such Contract, with respect to any term or provision of any such Contract, in each case, which would, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required be reasonably expected to be disclosed on Section 3.19 material to the Business, the Conveyed Companies and the Purchased Assets, taken as a whole. Except as would not, individually or in the aggregate, be reasonably expected to be material to the Business, the Conveyed Companies and the Purchased Assets, taken as a whole, as of the date hereof, no Asset Selling Entity or Conveyed Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant has given to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of received from any other Person (other than acquisitions any written notice or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
communication (i) Each Material Contract is valid and binding on the Company regarding any actual, alleged, possible, or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material potential breach of, or default under, any Material Contract and (iiiother than in respect of ordinary course product warranty claims) or (ii) announcing or threatening termination or cancellation of any Material Contract. As of the date hereof, except in the ordinary course of business, there is no event has occurred that pending or, to the Knowledge of Seller, threatened audit or investigation of the Seller’s or its applicable Affiliate’s (including any Conveyed Company’s) compliance with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by any other party to such Material Contract. To the Company or its Subsidiaries orKnowledge of Seller, there are no product warranty claims pending by any customers of the Business party to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all any Material Contracts (whether or not in effect as of the date hereof (other than purchase ordersordinary course) which claims are, invoices, and similar confirmatory individually or administrative documents that are ancillary to in the main contractual relationship between the parties to a particular Contract or group of Contracts and thataggregate, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)excess of $5,000,000.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, Inc.)
Material Contracts. (a) Section 3.13(a) of Except for this Agreement or as designated as an exhibit to the Company Disclosure Schedule contains Partnership’s annual report on Form 10-K for the year ended December 31, 2008 or to a listing of all Contracts described in clauses (i) through (xiii) below Xxxxxx SEC Document filed thereafter and prior to which, as of the date of this Agreement, neither the Company or Partnership nor any of its Subsidiaries is a party to or by bound by, as of the date hereof, any Contract (whether written or oral) which they are bound, other than is a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no “material outstanding or executory obligations or Liabilities contract” (as such Contracts as are required to be set forth on Section 3.13(aterm is defined in Item 601(b)(10) of Regulation S-K of the Company Disclosure Schedule, SEC) (all contracts of the type described in this Section 3.17(a) being referred to herein as “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract (other than the Xxxxxx Operating Credit Agreement) is valid and binding on the Company or Partnership and any of its SubsidiariesSubsidiaries that is a party thereto, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, except where the failure to be valid, binding and enforceable in accordance with its terms against full force and effect, either individually or in the Company or its Subsidiaries andaggregate, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)would not have a Xxxxxx Material Adverse Effect, (ii) the Company or Partnership and each of its Subsidiaries and, has in all material respects performed all obligations required to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any be performed by it under each Material Contract (other than the Xxxxxx Operating Credit Agreement), except where such noncompliance, either individually or in the aggregate, would not have a Xxxxxx Material Adverse Effect, and (iii) no neither the Partnership nor any of its Subsidiaries knows of, or has received notice of, the existence of any event has occurred that (with or without due condition which constitutes, or, after notice or lapse of time or both) would result in , will constitute, a material breach of, default on the part of the Partnership or default under, any of its Subsidiaries under any such Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersthe Xxxxxx Operating Credit Agreement), invoicesexcept where such default, either individually or in the aggregate, would not have a Xxxxxx Material Adverse Effect.
(c) The Xxxxxx Operating Credit Agreement is valid and binding on Xxxxxx Operating, LLC and in full force and effect. Except for a Ratio Default, (i) each Xxxxxx Group Entity has performed all obligations required to be performed by it under the Xxxxxx Operating Credit Agreement, and similar confirmatory (ii) no Xxxxxx Group Entity is in breach, default (or administrative documents that are ancillary to after notice or lapse of time or both, would be in default) or violation in the main contractual relationship between performance of any obligation, agreement or condition contained in the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Xxxxxx Operating Credit Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Hiland Partners, LP), Merger Agreement (Hiland Holdings GP, LP)
Material Contracts. (a) Section 3.13(a3.9(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as Schedules lists each of the date following Contracts of this Agreement, the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts, together with all Contracts as are required to be set forth on in Section 3.13(a3.10(c) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure ScheduleSchedules, the being “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Contract relating to Indebtedness for borrowed money of that cannot be cancelled by the Company or its Subsidiaries Subsidiary without penalty or to the placing of a Lien without more than thirty (other than a Permitted Lien30) on any material assets or properties of the Company or its Subsidiariesdays’ notice;
(ii) any Contract under which all Contracts that require the Company or any of its Subsidiaries is lessee to purchase its total requirements of any product or holds service from a third party or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease that contain “take or agreement under which the aggregate annual rental payments do not exceed $500,000pay” provisions;
(iii) excluding any Contract under which indemnification for infringement of Intellectual Property granted to customers of the Company or its Subsidiaries is lessor in connection with the provision of or permits any third party to hold or operatethe Company’s services, in each case, any tangible property (other than real property), owned or controlled all Contracts that provide for the indemnification by the Company or any of its SubsidiariesSubsidiaries of any Person or the assumption of any Tax, except for environmental or other Liability of any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (A) joint venturewhether by merger, profit-sharingsale of stock, partnership, collaboration, co-promotion, commercialization sale of assets or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractsotherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any Contract of its Subsidiaries is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party and which are not cancellable without material penalty or without more than thirty (30) days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to Indebtedness;
(viii) all Contracts with any Governmental Authority to which the Company or any of its Subsidiaries is a party (“Government Contracts”);
(ix) all Contracts that (A) limits limit or purports purport to limit, in any material respect, limit the freedom ability of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or that would so limit or purport to limit, in during any material respect, the operations period of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Scheduletime;
(x) any Contract with any Person (A) pursuant Contracts to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries is a party that provide for any joint venture, partnership or similar arrangement by the Company or any of its Subsidiaries;
(xi) all collective bargaining agreements or Contracts with any Union to make which the Company or any payment or incur any Liability as of its Subsidiaries is a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothparty; and
(xviixii) any other Contract the performance of which requires either (A) annual payments that is material to or from the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments and not previously disclosed pursuant to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticethis Section 3.9.
(ib) Each Material Contract is valid and binding on the Company or the Subsidiary that is a party thereto in accordance with its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, terms and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andsubject, as to enforcement, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or and other Laws laws affecting generally the enforcement of creditors’ rights generally and subject to general principles of equity). None of the Company, (ii) the Company or any of its Subsidiaries andor, to the Knowledge of the Company’s Knowledge, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract and (iii) Contract. To the Knowledge of the Company, no event or circumstance has occurred that (that, with or without due notice or lapse of time or both) , would constitute an event of default under any Material Contract or result in a material breach of, termination thereof or default under, would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract by the Company or its Subsidiaries or(including all modifications, to the Company’s Knowledge, the counterparties thereto. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Parent.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Quality Systems, Inc)
Material Contracts. (a) Section 3.13(a) As of the date hereof, except for this Agreement and the agreements filed as exhibits to the Company SEC Documents or set forth in the Company Disclosure Schedule, none of the Company Disclosure Schedule contains a listing nor any of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including has rights under any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, following Contracts to the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):extent currently in effect:
(i) any employment, contractor or consulting Contract relating to Indebtedness for borrowed money with any executive officer or other employee of the Company earning an annual salary in excess of $200,000 or its Subsidiaries or to member of the placing Company’s Board of a Lien (Directors, other than a Permitted Lien) on any material assets or properties of those that are terminable by the Company or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation to the Company or any of its Subsidiaries, or any collective bargaining agreement or contract with any labor union or other employee organization;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesplan, in each caseincluding, without limitation, any tangible property Company Plan or employee agreement, any of the 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 (other than real propertyeither alone or upon the occurrence of additional or subsequent events) 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 (either alone or upon the occurrence of additional or subsequent events), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under Contracts in connection with which or pursuant to which the Company or and its Subsidiaries is lessor of reasonably likely to spend or permits any third party to hold or operatereceive, in each casethe aggregate, any tangible property (more than $200,000 during the current fiscal year or during the next fiscal year, other than real property), owned or controlled by as are entered into the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000ordinary course of business consistent with past practice;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, Contracts pursuant to which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or any of its Subsidiaries in excess has granted a right of $1,000,000 over the life of the Contract first refusal, first negotiation, most favored nation pricing or (B) other Contract with respect to material Company Licensed Intellectual Property (similar terms, preferred pricing, exclusive sales, distribution, marketing or other than any Non-Scheduled Contracts)exclusive rights1;
(v) any Contract that Material partnership or joint venture agreements;
(Avi) limits Contracts for the acquisition, sale or purports to limit, in any lease of material respect, the freedom properties or assets of the Company or its Subsidiaries to engage (by merger, purchase or compete in any line sale of business assets or with any Person stock or in any area or that would so limit or purport to limitotherwise), in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over 200,000 in the life aggregate, other than sales of inventory in the agreementordinary course of business;
(vii) any Contract requiring loan or credit agreements, deeds of trust, mortgages, promissory notes, indentures or other Contracts evidencing or securing indebtedness for borrowed money by the Company or any of its Subsidiaries Subsidiaries, or any Contracts with respect to guarantee the Liabilities of any Person (swap, forward, futures, warrant, option or other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000derivative transaction;
(viii) any Contract under which Contracts providing for, (a) indemnification or guaranty, other than as are entered into in the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advanceordinary course of business, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or guaranty other than as entered into in the aggregate, ordinary course of business or as set forth in an amount in excess of $200,000 or made any capital contribution toclause (b) hereof, or other investment in, (b) any Personguaranty of indebtedness;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which Contracts between the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor unioncurrent or former 5% or greater stockholder, labor organization director, officer or works council representing employees other Affiliate of the Company or any of its SubsidiariesSubsidiaries (or any Affiliate of such Person), on the other hand;
(xivx) any Contract with Contracts that purport to limit, curtail or restrict the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries to make compete in any payment material respect in any geographic area or incur line of business, or to acquire, own, operate, sell, transfer, pledge or otherwise dispose of any Liability as a result assets or to hire or solicit for hire for employment of any individual or group;
(xi) Contracts pursuant to which the Company or its Subsidiaries grant to or receive from any person the right to use any Intellectual Property material to the conduct of the consummation Business, other than as relates to generally available commercial or ‘shrinkwrap’ software;
(xii) settlement agreements which contain continuing material obligations of the transactions contemplated Company or any of its Subsidiaries;
(xiii) any Contracts, or groups of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(xiv) any Real Property Lease;
(xv) Contracts that would be required to be filed as an exhibit to an Annual Report on Form 10-K if such report were required to be filed by this Agreement, termination the Company with the SEC on the date hereof;
(xvi) confidentiality agreements with the Company that would prohibit the Company from complying with any of employment the terms of Section 6.3(b) or bothSection 6.3(c) if the counterparty to such confidentiality agreement were to make a Superior Proposal or Takeover Proposal (with the name of the counterparty thereof redacted to extent required by the terms of such confidentiality agreement); and
(xvii) commitments and agreements to enter into any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andforegoing (such Contracts, in each case, that is not terminable by and including the applicable the Contracts filed as exhibits to Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s KnowledgeSEC Documents, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any “Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightsContracts”).
Appears in 2 contracts
Samples: Merger Agreement (Nutra Acquisition CO Inc.), Merger Agreement (Plethico Pharmaceuticals Ltd.)
Material Contracts. (a) Section 3.13(a) Other than Contracts existing as of the Closing between the Company or a Subsidiary of the Company, on one hand, and Investor or an Affiliate of Investor, on the other hand, Section 4.18 of the Disclosure Schedule contains sets forth a listing true, correct, and complete list of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party party, or by which they are the Company or any of its Subsidiaries is bound, other than a Company Benefit Plan, and that are not expired material to the business, operations, financial condition, or have not been terminated and not including any Contracts pursuant to which results of operations of the Company has with no material outstanding or executory obligations or Liabilities any of its Subsidiaries (such Contracts as are required to be set forth listed on Section 3.13(a) 4.18 of the Company Disclosure Schedule, the “Material Contracts”). TrueExcept as set forth in Section 4.18 of the Disclosure Schedule, correct the Company is not party to any Contract with Clean Coal Solutions Services, LLC.
(b) Neither the Company nor any of its Subsidiaries has breached or defaulted under, nor is there any written claim or threat that the Company or any of its Subsidiaries has breached or defaulted under, any term or condition of any Material Contract. Each Material Contract is in full force and effect and is a valid and binding agreement of and enforceable against the Company or its Subsidiary, as applicable, and, to the Company’s Knowledge, the other parties thereto, and, to the Company’s Knowledge, no other party to any such Material Contract is in default under such Material Contract. To the Company’s Knowledge, there are no circumstances that are reasonably likely to occur that could reasonably be expected to adversely affect the Company’s or its Subsidiaries’ ability to perform their obligations under any Material Contract. The Company has delivered to the Investor and the Investor’s legal counsel true, correct, and complete copies of the all Material Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, (together with all amendments amendments, modifications, and supplements thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease and no Material Contract has been rescinded or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled terminated by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;applicable Subsidiary of the Company.
(ivc) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from Each Contract between the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees Affiliate of the Company or (excluding its Subsidiaries), on the other hand;
(xiv) any Contract , was entered into in the ordinary course of business, is consistent with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate past practice of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)on an arm’s-length basis.
Appears in 2 contracts
Samples: Class B Unit Purchase Agreement (Ada-Es Inc), Class B Unit Purchase Agreement (Ada-Es Inc)
Material Contracts. (a) Section 3.13(a3.15(a) of the Company Disclosure Schedule contains a listing true, complete and correct list of all Contracts described in clauses (i) through (xiii) below to which, as each of the date of this Agreementfollowing contracts, agreements and commitments (including, without limitation, oral and informal arrangements to the Company or its Subsidiaries is a party or by which they extent the same are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant material to the Business) to which the Company has with no material outstanding or executory obligations or Liabilities any Subsidiary is a party (such Contracts as are required to be contracts and agreements, together with all contracts, agreements, leases and subleases concerning the management or operation of any Leased Real Property (including, without limitation, brokerage contracts) listed in Section 3.17(a) or 3.17(b) of the Company Disclosure Schedule, and all agreements set forth on in Section 3.13(a3.16(a) of the Company Disclosure Schedule, the “"Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto"):
(i) each contract, agreement, invoice, purchase order and other arrangement for the purchase of inventory, spare parts, other materials or personal property with any Contract relating supplier or for the furnishing of services to Indebtedness for borrowed money the Company, any Subsidiary or otherwise related to the Business under the terms of which the Company or its Subsidiaries any Subsidiary could reasonably be expected to pay or to otherwise give consideration of more than US$25,000 in the placing aggregate during the fiscal year ending March 31, 1999 or US$250,000 over the remaining term of a Lien (other than a Permitted Lien) on any material assets or properties of such contract, and which cannot be canceled by the Company or its Subsidiariessuch Subsidiary without penalty or further payment and without more than 30 days' notice;
(ii) each contract, agreement, invoice, sales order and other arrangement for the sale of inventory or other personal property or for the furnishing of services by the Company or any Contract Subsidiary or otherwise related to the Business under the terms of which the Company or its Subsidiaries is lessee any Subsidiary could reasonably be expected to receive consideration of or holds or operates, more than US$25,000 in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do during the fiscal year ending March 31, 1999 or US$250,000 over the remaining term of the contract, and which cannot exceed $500,000be canceled by the Company or such Subsidiary without penalty or further payment and without more than 30 days' notice;
(iii) any Contract under which the Company each broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contract, agreement or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000commitment;
(iv) each contract, agreement or commitment with any present or former employee, independent contractor or consultant (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization excluding routine engagement letters with individual attorneys or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractslaw firms);
(v) any Contract that (A) limits each contract, agreement or purports commitment relating to limit, in any material respect, the freedom Indebtedness of the Company or its Subsidiaries any Subsidiary;
(vi) each contract, agreement or commitment with any Governmental Authority;
(vii) each contract, agreement or commitment limiting or purporting to engage limit the ability of the Company, any Subsidiary, the Business or any successor thereto to compete in any line of business or with any Person person or in any geographic area or that would so limit or purport to limit, in during any material respect, the operations period of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000time;
(viii) any Contract under which each contract, agreement or commitment between or among the Company or its Subsidiaries has, directly any Subsidiary and the Company or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside affiliate of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonCompany;
(ix) each contract, agreement or commitment providing for benefits under any Contract required to be disclosed on Section 3.19 of the Company Disclosure SchedulePlan;
(x) any Contract with any Person (A) pursuant to which the Company each contract, agreement or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) commitment under which the Company has obtained or its Subsidiaries grants to will obtain any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for each contract, agreement or commitment that materially limits or restricts, or could reasonably be expected to materially limit and restrict, the disposition of any portion of the assets or business ability of the Company or its Subsidiaries any Subsidiary or, immediately after the Effective Time, Nu Skin or for any subsidiary thereof, to use, modify, display, reproduce, distribute, license, sell or provide the acquisition by the Company Company's or its Subsidiaries of the assets any Subsidiaries' products or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationservices;
(xii) each contract, agreement or commitment, whether or not made in the ordinary course of business, which is material to the Company, any settlement, conciliation Subsidiary or similar Contract (A) requiring monetary payments by the Company conduct of the Business or its Subsidiaries after the date absence of this Agreement, (B) with which could reasonably be expected to have a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Material Adverse Effect; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, research and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticecollaboration contract.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises Inc)
Material Contracts. (a) Except as set forth in the Disclosure Letter or the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2012 and as permitted pursuant to Section 3.13(a) of 5.1 hereof, neither the Company Disclosure Schedule contains a listing nor any of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party to or bound by:
(i) any agreement relating to the incurring or guarantee of Indebtedness by the Company or any of its Subsidiaries in an amount in excess of US$250,000 in the aggregate, including any such agreement which they are boundcontains provisions that restrict, or may restrict, the conduct of business of the issuer thereof as currently conducted (collectively, “Instruments of Indebtedness”);
(ii) any agreement providing for the indemnification, in excess of US$250,000, by the Company or a Subsidiary of the Company of any Person other than a standard form indemnity provisions in agreements with customers of the Company Benefit Planor any of its Subsidiaries entered into in the ordinary course of business consistent with past practice;
(iii) any joint venture, and partnership or similar agreement;
(iv) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business;
(v) any contract or agreement providing for any payments that are not expired conditioned, in whole or in part, on a change of control of the Company or any of its Subsidiaries, or that will have not been terminated increased benefits, or accelerated vesting of benefits due to the consummation of the transactions contemplated hereby (including the Tender Offer);
(vi) any collective bargaining agreement;
(vii) any agreement material to the Company and not including its Subsidiaries, taken as a whole, pertaining to the acquisition, transfer, development, sharing, licensing or use of or granting any Contracts right to use or practice any rights under any Intellectual Property;
(viii) any agreements pursuant to which the Company has with no or any of its Subsidiaries leases or subleases any material outstanding real property from or executory obligations to third parties;
(ix) any contract or Liabilities (such Contracts as are required agreement material to be set forth on Section 3.13(a) of the Company Disclosure Scheduleand its Subsidiaries, taken as a whole, providing for the “Material Contracts”). Trueoutsourcing or provision of servicing of customers, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent technology or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties product offerings of the Company or its Subsidiaries;
(iix) any Contract under which employment or consulting contract with any current executive officer of the Company or its Subsidiaries is lessee any Subsidiary of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor any member of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company Board or its Subsidiaries, except for the board of directors of any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;Company Subsidiary; or
(ivxi) any other contract or other agreement not made in the ordinary course of business consistent with past practice that (A) joint ventureis not within any of the other categories described in this Section 3.7(a) but is material to the Company and its Subsidiaries taken as a whole, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or (B) would reasonably be expected to require (based on any occurrenceresult in revenues, developmentreceipts, activity liabilities or event contemplated by such Contract)expenditures, aggregate payments to or from the Company or its Subsidiaries otherwise involve an amount, in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions US$500,000 per year or (C) contains any other provisions restricting would reasonably be expected to materially delay or purporting to restrict prevent the ability consummation of the Company or its Subsidiaries to sellTender Offer, manufacturethe Capital Contribution, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent the Restructuring or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this AgreementAgreement (the agreements, termination of employment or both; and
contracts and obligations set forth in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2012 and the agreements, contracts and obligations listed in clauses (xviii) any other Contract the performance of which requires either through (Axi) annual payments being referred to or from the herein as “Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Contracts”).
(ib) Section 3.7(a) of the Disclosure Letter sets forth as of the date hereof all of the Company Material Contracts. True, correct and complete copies of each Company Material Contract have been made available to the Purchasers.
(c) Each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable(or, to the extent a Subsidiary of the Company is a party, such Subsidiary) and, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto, and each Company Material Contract is in full force and effect and enforceable in accordance with its terms against effect. Neither the Company or nor any of its Subsidiaries andis 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 have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 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 Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, does there exist any condition which with the counterparties thereto are not passage of time or the giving of notice or both would result in material such a breach of, or default under, ) any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Company Material Contract by any other party thereto except where any such violations or defaults have not had and would not reasonably be expected to have, individually or in the Company or its Subsidiaries oraggregate, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all a Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Samples: Recapitalization Agreement (Ventura Capital Privado, S.A. De C.V.), Recapitalization Agreement (Maxcom Telecommunications Inc)
Material Contracts. (a) Section 3.13(a) of Except as set forth in Schedule 4.09 and excluding any Contract that is an Excluded Asset or an Excluded Liability, but including the Company Disclosure Shared Contracts listed on Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below 6.08, with respect to whichthe Business, as of the date of this Agreement, the Company or Agreement neither Seller nor any of its Subsidiaries (including the Purchased Subsidiaries) is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating to Indebtedness providing for borrowed money the performance of services or the Company delivery of goods or materials by Seller or any of its Subsidiaries that requires annual payments to Seller or to the placing any of a Lien (other than a Permitted Lien) on any material assets its Subsidiaries of $100,000 or properties of the Company or its Subsidiariesmore;
(ii) any Contract under which the Company lease of personal property requiring annual rentals of $100,000 or more that cannot be terminated on not more than 60 days’ notice without payment by Seller or and its Subsidiaries is lessee of or holds or operates, any penalty in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed excess of $500,00020,000;
(iii) any Contract under which agreement for the Company purchase of materials, supplies, goods, services, equipment or its Subsidiaries is lessor of or permits any other tangible assets from a third party to hold or operatethat is one of the fifteen (15) largest suppliers (by dollar-value of total purchases) of the Business for (A) the twelve (12)-month period ended December 26, in each case2017 and (B) the six (6)-month period ended June 26, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,0002018;
(iv) any (A) partnership, joint venture, profit-sharingfranchise, partnershiproyalty, collaboration, co-promotion, commercialization management or research or development Contract, or other similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)agreement;
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company Seller or of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that area, in each case which would so limit or purport to limit, in any material respectthe freedom of Buyer after the Initial Closing Date, the operations of Parent North Carolina Closing Date or any of its Affiliates after the ClosingDelaware Closing Date, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingas applicable;
(vi) any Contract requiring any future capital commitment granting to Seller or capital expenditure (or series one of capital expenditures) by the Company or its Subsidiaries any exclusive right to use, exploit or practice, or including any covenant not to xxx, with respect to any Intellectual Property Right that is material to the Business (other than COTS Licenses and other Contracts entered into in an amount the ordinary course of business); any material Contract under which Seller or any of its Subsidiaries grants to a third party any rights under or with respect to Transferred Business Intellectual Property other than non-exclusive licenses granted in excess the ordinary course of (A) $300,000 annually business; or (B) $1,000,000 over any co-existence agreement or similar Contract that limits in any material respect Seller’s or any of its Subsidiaries’ rights to use or otherwise exploit, enforce or register any material Trademarks included in the life of the agreementTransferred Business Intellectual Property;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of with any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Governmental Authority;
(viii) any employment or consulting Contract under which with any Business Employee that involves aggregate annual payment in excess of $50,000;
(ix) any Contract with any labor union;
(x) any Contract relating to settlement of any material administrative or judicial proceedings within the Company past three (3) years;
(xi) any Contract that results in any Person holding a power of attorney on behalf of Seller or any of its Subsidiaries has(including the Purchased Subsidiaries) and/or the Business; or
(xii) any note, directly mortgage, indenture or indirectly, made other obligation or agreed agreement or other instrument for or relating to make any loan, advanceIndebtedness for borrowed money (including capitalized leases), or assignment any guarantee of payment third party obligations, or any lien securing such Indebtedness or obligations, or any letters of credit, performance bonds or other credit support for the Business that will need to any Person outside of be replaced at the Ordinary Course of Business orInitial Closing.
(b) Except as would not reasonably be expected, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toto have a Material Adverse Effect, (i) each Contract set forth, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
set forth, in Schedule 4.09 (x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingeach, a “Material Contract”) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or agreement of Seller and/or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties applicable Subsidiaries party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other and similar Laws affecting generally the enforcement of creditors’ rights generally and subject subject, as to enforceability, to general principles of equity), (ii) the Company or neither Seller nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach of, or material default under, any Material Contract Contract, except where such breach or default would not reasonably be expected to be material to the Business, and (iii) to the knowledge of Seller, no event has occurred that (with or without due notice or lapse other party to a Material Contract is in default of time or both) would result in a material breach ofsuch Material Contract. As of the date of this Agreement, or default under, no party to any Material Contract by has given written, or to the Company knowledge of Seller oral, notice to Seller or any of its Subsidiaries or, (including the Purchased Subsidiaries) of its intention to the Company’s Knowledge, the counterparties theretocancel or otherwise terminate any such agreement. The Company Seller has delivered or made available to Parent Buyer true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 2 contracts
Samples: Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.), Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of Except for this Agreement, the Company Parent Benefit Plans and agreements filed as exhibits to the Parent SEC Documents or to any forms, reports or documents filed with the SEC subsequent to the date hereof, neither Parent nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating coal supply agreement, coal transportation agreement, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement that (A) is subject to Indebtedness for borrowed money profit-sharing arrangements where the amount required to be shared with a third party could reasonably be expected to exceed $400 million over the life of the Company transaction, (B) contains “take or pay,” “liquidated damages” or “termination, closeout or liquidation” provisions associated with a transaction with a notional amount of $2 billion or more or (C) creates actual indebtedness of Parent or results in imputed indebtedness to Parent as assigned by Standard & Poor’s or Xxxxx’x in an amount greater than $400 million (using customary discounting); provided, for the purposes of this Section 5.20(a)(i), any imputed indebtedness amount associated with a physical power transaction entered into by Parent or any of its Subsidiaries or (the “Parent Power Purchaser”) shall be net of expected ISO revenues related to the placing capacity rights and other related energy products assigned to the Parent Power Purchaser in such transaction for the years in which such capacity or other related energy products have been sold prior to the execution of such transaction in a Lien forward ISO capacity auction; provided, however, such netting only shall occur with respect to a power transaction if the transaction (other than a Permitted Lieni) on any material assets or properties specifies the generation unit which will be the source of the Company power, capacity and other related energy products delivered to the Parent Power Purchaser and (ii) assigns the rights to the ISO revenues for such capacity or its Subsidiariesother related energy products in such years to the Parent Power Purchaser;
(ii) any Contract under which imposing any material restriction on the Company right or ability of Parent or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property to (other than real property), owned by A) compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits acquire or purports to limit, in any material respect, the freedom dispose of the Company securities of another Person or its Subsidiaries to (C) engage or compete in any line of business or with any Person or in any geographic area or that would so limit contains restrictions on pricing or purport exclusivity or non-solicitation provisions with respect to limitcustomers; or
(iii) any Contract with an aggregate principal amount, or providing for an aggregate obligation, in excess of $200 million (A) evidencing any material respect, the operations credit facility of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life guaranteeing obligations for borrowed money or other obligations of a third party other than any Subsidiary. All Contracts of the agreement;types referred to in clauses (i), (ii) and (iii) in this Section 5.20(a) and any Contract that is a material Contract required to be filed as an exhibit to Parent’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of the SEC are referred to herein as “Parent Material Contracts.”
(viib) Neither Parent nor any Contract requiring Subsidiary of Parent is in breach of or default under the Company or its Subsidiaries to guarantee the Liabilities terms of any Person (other than the Company Parent Material Contract where such breach or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ordefault would reasonably be expected to, individually or in the aggregate, in an amount in excess have a material impact on Parent. To the Knowledge of $200,000 or made any capital contribution toParent, or no other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants party to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is in breach of or default under the terms of any Parent Material Contract where such breach or default would reasonably be expected to, individually or in the aggregate, have a material impact on Parent. Except as would not reasonably be expected to, individually or in the aggregate, have a material impact on Parent, each Parent Material Contract is a valid and binding on obligation of Parent or the Company or its Subsidiaries, as applicableSubsidiary of Parent which is party thereto and, to the Company’s KnowledgeKnowledge of Parent, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 2 contracts
Samples: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Material Contracts. (a) Section 3.13(a) 4.18 of the Company Disclosure Schedule contains lists the following Contracts to which the Company or any Company Subsidiary is a listing of all Contracts described in clauses (i) through (xiii) below to which, party as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities hereof (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Company Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating all Contracts that purport to Indebtedness for borrowed money limit, curtail or restrict the right of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any Company Subsidiary in any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any respect (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or in any geographic area, with any Person or in during any area period of time, or (B) to solicit or hire any Person;
(ii) any Contract that would so limit or purport to limit, in grants any material respect, Person other than the operations of Parent Company or any of its Affiliates after the ClosingCompany Subsidiary any (A) exclusive license, supply, distribution or other rights, (B) contains any exclusivity, material “most favored nation” or similar provisionsrights, obligations or restrictions or (C) material rights of first refusal, rights of first negotiation or similar rights, (D) exclusive rights to purchase any Company products, including products produced through foundry services, (E) material guaranteed availability of supply or services for a period greater than twelve (12) months, (F) guarantee as to foundry capacity or priority, (G) material rebates or (H) price guarantees for a period greater than twelve (12) months;
(iii) any Contract relating to the disposition or acquisition by the Company or any Company Subsidiary of any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (A) entered into on or after January 1, 2006 (whether or not such acquisition or disposition has been consummated prior to the date of this Agreement), or (B) that contains ongoing non-competition or material indemnification obligations or other material ongoing obligations;
(iv) listing separately, except for such Contracts that have expired or been terminated and have no ongoing obligations (other than confidentiality obligations or indemnity obligations), all (A) In-Bound Patent Licenses, the primary purpose of which is to license one or more Patents, (B) Out-Bound Patent Licenses that license, or agree to license, a substantial portion of issued Company Patents or the primary purpose of which is to license one or more Patents, (C) Cross-licenses that license, or agree to license, a substantial portion of issued Company Patents or the primary purpose of which is to license one or more Patents and (D) other Patent Licenses, excluding Software license agreements executed in the normal course of business, that require a royalty payment to, or royalty payment by, the Company or any other provisions restricting or purporting to restrict the ability of the Company Subsidiaries;
(v) any Contract with respect to product or its Subsidiaries Intellectual Property development that is material to sellthe Company and the Company Subsidiaries, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingtaken as a whole;
(vi) any Contract requiring any future capital commitment Technology transfer or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of license agreement related to a (A) $300,000 annually manufacturing process or (B) $1,000,000 over related to product design that, in the life case of clause (B), affects a material portion of the agreementCompany’s product portfolio;
(vii) any Contract requiring with respect to product design services, foundry services, product assembly (packaging) and/or test, or material contract manufacturing services that affects a material portion of the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Company’s product portfolio;
(viii) any Contract under which the Company with any Governmental Authority or its Subsidiaries hasany Contract incorporating government acquisition terms (e.g., directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregateU.S., the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS)) involving payments of more than Two Million Dollars ($2,000,000) in an amount in excess any twelve (12) month period or requiring delivery of $200,000 or made any capital contribution to, or other investment in, any Personcost and pricing data;
(ix) any Contract required that reasonably contemplates payments by or to be disclosed on Section 3.19 the Company or any of the Company Disclosure ScheduleSubsidiaries of more than Ten Million Dollars ($10,000,000) in any twelve (12) month period;
(x) any customer Contract with any Person (Aother than standard purchase orders) pursuant that reasonably contemplates payment to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to of more than Five Million Dollars ($5,000,000) in any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertytwelve (12) month period;
(xi) any Contract for the disposition of any portion of the assets Contracts with distributors or business of the Company sales representatives or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect that otherwise entitle a third party to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationa commission;
(xii) any settlementmortgages, conciliation indentures, guarantees, loans or similar Contract credit agreements, security agreements or other Contracts, in each case, relating to indebtedness for borrowed money of Five Million Dollars (A$5,000,000) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementgreater, (B) with a Governmental Authority whether as borrower or (C) that imposes any materiallender, non-monetary obligations on the Company and whether secured or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andunsecured;
(xiii) each collective bargaining agreement any Contract with a notional value of Fifteen Million Dollars ($15,000,000) or greater that involves or relates to any exchange traded, over-the-counter or other Contract with the Company hedging (including currency hedging), swap, cap, floor, collar, futures, forward, option or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handderivative financial trading activities;
(xiv) any Contract with providing for indemnification or any guaranty by the Company or its any Company Subsidiary that (i) has not been made in the ordinary course of business or (ii) is material to the Company and any Company Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of taken as a whole (in each case with respect to which the Company or its Subsidiaries or any Company Subsidiary has continuing obligations as of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentthe date hereof);
(xv) leases or subleases under which the Company or the Company Subsidiaries (A) lease or occupy Leased Real Property for manufacturing purposes or in excess of one hundred thousand (100,000) gross square feet and (B) leases, subleases or licenses of any employment, consulting, bonus, commissions property to a third party for manufacturing purposes or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments in excess of more than $500,000 per yearone hundred thousand (100,000) gross square feet;
(xvi) any employment Contract establishing a partnership, joint venture or similar third party business enterprise in which the Company or any Company Subsidiaries has (A) an equity interest or the right to acquire an equity interest or (B) a capital commitment or other obligation under such Contract;
(xvii) (A) any Employee Change-of-Control Agreement or (B) any employment, independent contractor or consulting Contract (in each case with severance, change in control, retention respect to which any party thereto has continuing obligations as of the date hereof) with any current or similar arrangements, that will result in any obligation former (absolute or contingent1) executive officer of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result the Company Subsidiaries, (2) member of the consummation Company Board, or (3) employee, independent contractor who is a natural person or consultant of the transactions contemplated by this AgreementCompany or any of the Company Subsidiaries, in each case providing for an annual base compensation in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(xviii) collective bargaining agreements or other Contracts with any labor union;
(xix) any other Contract under which the consequences of a default or breach or the early termination of employment or bothwhich would reasonably be expected to have a Company Material Adverse Effect; and
(xviixx) any all other Contract the performance of which requires either (A) annual payments Contracts required to or from be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from disclosed by the Company on a Current Report on Form 8-K, whether or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company so filed or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticedisclosed.
(i) Each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against (other than due to the Company or its Subsidiaries ordinary expiration of the term thereof), and, to the Knowledge of the Company’s Knowledge, is valid and binding on the counterparties other parties thereto (in each case subject to applicable bankruptcythe Bankruptcy and Equity Exception) except as has not had and would not reasonably be expected to have, insolvencyindividually or in the aggregate, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)a Company Material Adverse Effect, (ii) the Company or its Subsidiaries andand each Company Subsidiary has in all material respects performed all obligations required to be performed by it under each Company Material Contract, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due condition exists which constitutes or, after notice or lapse of time or both) , would result constitute a breach or default on the part of the Company or any Company Subsidiary under any such Company Material Contract, except such breaches that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Material Contract is in material breach or default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a material breach of, or default under, by any Material Contract by such other party thereunder. Neither the Company nor any Company Subsidiary has received any written notice of termination or its Subsidiaries cancellation under any Company Material Contract, received any written or, to the Knowledge of the Company’s Knowledge, oral notice of material breach or default under any Company Material Contract that has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a material breach of any Company Material Contract. Neither the counterparties theretoCompany nor any Company Subsidiary is party to any Contract pursuant to which the terms and conditions thereof or any information or data contained therein are deemed classified pursuant to the rules and regulations of any Governmental Authority. The Company has furnished or made available to Parent true true, correct and complete copies of all Company Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)hereof.
Appears in 2 contracts
Samples: Merger Agreement (National Semiconductor Corp), Merger Agreement (Texas Instruments Inc)
Material Contracts. (aExcept for those entered into in accordance with Sections 6.1 and 6.2, Schedule 4.2(i) Section 3.13(a) sets forth a list of the Company Disclosure following contracts or agreements, whether written or oral (each contract or agreement that is listed on Schedule contains 4.2(i), a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) that commit an Acquired Company to aggregate expenditures of more than $3,000,000 during the current or any Contract relating to Indebtedness for borrowed money subsequent calendar year, excluding (A) any Lease creating the applicable Acquired Company’s Hydrocarbon Interests and any contracts or agreements creating interests or rights in any of the Company or its Subsidiaries or Hydrocarbon Interests, (B) joint operating agreements applicable to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company Hydrocarbon Interests and (C) unitization or its Subsidiariespooling agreements applicable to any of the Hydrocarbon Interests;
(ii) that can reasonably be expected to result in aggregate revenues to any Contract under which Acquired Company of more than $10,000,000 during the current or any subsequent calendar year (based solely on the terms thereof and current volumes, without regard to any expected increase in volumes or revenues), excluding any such contract or agreement creating the applicable Acquired Company’s Hydrocarbon Interests and any contracts or agreements creating any other rights in the Hydrocarbon Interests;
(iii) that commit an Acquired Company to gather, sell, treat, process, store or its Subsidiaries transport (A) any Hydrocarbon production attributable to the Hydrocarbon Interests or (B) any Hydrocarbon production that is lessee (1) owned or controlled by a third Person, (2) not produced from a well included in any of the Hydrocarbon Interests and (3) delivered by such third Person to any Facilities located on (or holds otherwise used with respect to) any of the Hydrocarbon Interests, excluding (x) any such contract or operatesagreement that expires within ninety (90) days, or can be terminated by an Acquired Company upon ninety (90) days’ or less notice without penalty, (y) any Lease creating rights in any of the Hydrocarbon Interests and (z) any contract or agreement affecting the Hydrocarbon Interests with less than 400 boepd of Hydrocarbon production;
(iv) that constitute (A) a joint operating agreement, unit operating agreement, unitization or pooling agreement, participation agreement, farm-in or farm-out agreement, exploration agreement, development agreement or similar agreement with respect to any of the Subject Interests or (B) the Superior Turnkey Agreement;
(v) that provide for (A) an area of mutual interest with respect to the Subject Interests, (B) any “tag along” or “drag along” (or other similar) rights that allow a third party, or require any Acquired Company, to participate in any future transactions, in each case, with respect to the Subject Interests or (C) any tangible property requirement (other than real property)provided in any contract or agreement, owned the primary subject matter of which is confidentiality, non-disclosure and/or non-use) by any other Acquired Company to offer (to a third Person) any property that is acquired (after the Closing Date) by such Acquired Company, except for provided, however, in the case of clause (C) with respect to any lease Acquired Company that owns Offshore Legacy Assets, only to the extent set forth in any contract or agreement under which the aggregate annual rental payments do not exceed $500,000entered into on or after April 17, 2012;
(iiivi) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible that constitute a lease for real property (other but not, for the avoidance of doubt, a Lease creating any Hydrocarbon Interests) or office space where any Acquired Company is the lessor or lessee thereunder, which lease (A) cannot be terminated by Seller without penalty upon sixty (60) days’ or less notice and (B) involves an annual base rental of more than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,0001,000,000;
(ivvii) that in any way purport to restrict the right or freedom of any Acquired Company (with respect to the Subject Interests) to (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, engage in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, business activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or compete with any Person or in any area or that would so limit or purport to limitPerson, in any material respectprovided, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryhowever, in each case of clauses (A) and (B), with respect to any Acquired Company that owns Offshore Legacy Assets, only to the extent set forth in excess of $200,000;any contract or agreement entered into on or after April 17, 2012; and
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed that relate to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition Indebtedness of any portion of the assets or business of the Acquired Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions any Indebtedness that is owed by one Acquired Company to one or dispositions made in more of the Ordinary Course of Business), other Acquired Companies and other Indebtedness that will be discharged on or under which the Company or its Subsidiaries has any continuing obligation with respect prior to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Sandridge Energy Inc)
Material Contracts. (a) Section 3.13(a3.7(a) of the Company Disclosure Schedule contains Schedules sets forth a listing true and complete list of all the following Contracts described in clauses (i) through (xiii) below to whichwhich a Group Company is, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are each Contract required to be set forth on Section 3.13(a3.7(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of with a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesXxxxxxxxxx Party;
(ii) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) relating to Indebtedness of any Group Company or to the placing of a material Lien (other than any Permitted Lien) on any assets or properties of any Group Company;
(iii) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) under which the any Group Company or its Subsidiaries is lessee of or holds or operatesholds, in each case, any tangible or real property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000200,000;
(iiiiv) any Contract (or group of related Contracts with respect to a single transaction or series of related transactions) under which the any Group Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariessuch Group Company, except for any lease or agreement under which the aggregate annual rental payments and the fair market value of such tangible property do not exceed $200,000100,000;
(ivv) any (A) joint venture, partnership, or strategic alliance Contract in which a Group Company owns an equity interest and (B) other joint venture, partnership (or profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments strategic alliance or services Contract with respect to land development or from vertical construction and material to the Company or its Subsidiaries in excess of $1,000,000 over the life business of the Group Companies;
(vi) any Contract pursuant to which any Group Company (A) grants any license or other right under any Intellectual Property Rights material to its business, other than non-exclusive licenses granted to customers or third-party service providers in the ordinary course of business, or (B) receives any license or other Contract with respect to material Company Licensed right under any Intellectual Property (Rights material to its business, other than any Nonnon-Scheduled Contracts)exclusive licenses granted on standardized, commercially available terms for non-customized software;
(vvii) any Contract material to the business of any Group Company, the primary purpose of which is the Processing of Personal Information;
(viii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the any Group Company or 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 operations of Parent the Issuer or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” exclusivity provision that binds the Company or similar provisions, any other obligations or restrictions that limits the Company’s ability to conduct its business in the ordinary course, or (C) contains requires any other provisions restricting Group Company to purchase or purporting to restrict the ability of the Company otherwise obtain any materials or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through service exclusively from a single third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingparty;
(viix) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the any Group Company or its Subsidiaries in an amount in excess of (A) $300,000 250,000 annually or (B) $1,000,000 over the life of the agreement;
(viix) any Contract for (A) the acquisition or disposition of any real property (whether or not developed) from or by any Group Company or (B) the option to acquire or dispose of any real property (whether or not developed) from or by any Group Company, in the case of clauses (A) and (B), with a total acquisition or disposition consideration payable or receivable (or paid and received) for the real property subject thereto in excess of $10,000,000 (other than individual home sales in the ordinary course of business);
(xi) any executory Contract providing for any fee building arrangements to which any Group Company is a party;
(xii) any executory Contract with respect to preferred lender arrangements to which any Group Company is a party;
(xiii) any Contract with mortgage providers to which any Group Company is party;
(xiv) any Contract requiring the any Group Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a SubsidiaryLiabilities of any other Group Company) or pursuant to which any Person (other than the Company or a Subsidiaryany other Group Company) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Group Company;
(viiixv) any Contract under which the any Group Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ixxvi) any Contract required to be disclosed on Section 3.19 3.21 of the Company Disclosure ScheduleSchedules;
(xxvii) any Contract with governing the terms of, or otherwise related to, the employment, engagement or services of any Person current director, manager, officer, employee, or Contingent Worker of a Group Company (A) pursuant to which whose annual base salary (or, in the Company case of a Contingent Worker, actual or its Subsidiaries (or Parent or any of its Affiliates after the Closinganticipated annual base compensation) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events in excess of $250,000 or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license that provides for severance or any other similar rights with respect to any material Company Product post-termination payments or any material Intellectual Propertybenefits;
(xixviii) any Contract governing the terms of, or otherwise related to, the employment, engagement or services of any former director, manager, officer, employee or Contingent Worker of a Group Company pursuant to which any Group Company, as of the Closing, has or will have an obligation to pay severance or other post-termination pay;
(xix) any Contract providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xx) any collective bargaining agreements and any other agreements executed with a union or similar organization;
(xxi) any Contract for the disposition of any material portion of the assets or business of the any Group Company or its Subsidiaries or for the acquisition by the any Group Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)Person, or under which the any Group Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” ”, contingent purchase price or other contingent or deferred payment obligation;
(xiixxii) any settlement, Contract for the settlement or conciliation of a Proceeding or similar Contract other dispute with a third party (A) requiring monetary the performance of which would be reasonably likely to involve any payments by the Company or its Subsidiaries in excess of $250,000 after the date of this Agreement, (B) with which is a Governmental Authority Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations obligation on the any Group Company or its Subsidiaries (or Parent the Issuer or any of its their Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xviixxiii) any other Contract the performance of which requires either (A) annual payments to or from the any Group Company or its Subsidiaries in excess of $300,000 250,000 or (B) aggregate payments to or from the any Group Company or its Subsidiaries in excess of $1,500,000 500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Group Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice;
(xxiv) any Contract that prohibits the payment of dividends or distributions in respect of the Equity Securities of the Company, the pledging of the capital stock or other Equity Securities of the Company or the incurrence of Indebtedness by the Company;
(xxv) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Company would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock, assets or business of any other Person; and
(xxvi) each Contract containing any standstill or similar agreement pursuant to which a Person has agreed not to acquire assets or securities of another Person.
(i) Each Material Contract is valid and binding on the applicable Group Company or its Subsidiaries, as applicableand, to the knowledge of the Company’s Knowledge, the counterparties any counterparty thereto, and is in full force and effect and enforceable in accordance with its terms against (ii) the applicable Group Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (that, with or without due notice or the lapse of time or the giving of notice or both) , would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries would permit or cause the termination, non-renewal or modification thereof or acceleration or creation of any right or obligation thereunder and (iii) the Group Companies have not received any written or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as knowledge of the date hereof (other than purchase ordersCompany, invoicesoral notice of default under any Material Contract. No counterparty to any Material Contract has exercised or threatened in writing or, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between knowledge of the parties Company, orally any force majeure (or similar) provision in any Material Contract in relation to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)COVID-19.
Appears in 2 contracts
Samples: Convertible Note Purchase Agreement (DiamondHead Holdings Corp.), Convertible Note Purchase Agreement (DiamondHead Holdings Corp.)
Material Contracts. (a) Except for Contracts reflected as exhibits to its SEC Reports filed prior to the date of this Agreement or as set forth in Section 3.13(a) 2.25 of the Company St. Jxxxxx Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, the Company neither St. Jxxxxx nor any of its Subsidiaries, nor any of their respective assets, businesses, or its Subsidiaries operations, is a party to, or by which they are boundis bound or affected by, other than a Company Benefit Planor receives benefits under, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed the borrowing of money by St. Jxxxxx or any of the Company or its Subsidiaries or to the placing guarantee by St. Jxxxxx or any of a Lien its Subsidiaries of any such obligation (other than a Permitted Lien) on any material assets contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or properties guarantees made in the ordinary course of the Company or its Subsidiaries;
business), (ii) any Contract under which containing covenants that limit the Company ability of St. Jxxxxx or its Subsidiaries is lessee any of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person Person, or in to hire or engage the services of any area Person, or that would so limit involve any restriction of the geographic area in which, or purport to limitmethod by which, in any material respect, the operations of Parent St. Jxxxxx or any of its Affiliates after the Closing, Subsidiaries may carry on its business (B) contains other than as may be required by Law or any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third partiesGovernmental Authority), or to solicit any potential employee or customer, in each case, in any material respect or Contract that would so limit or purports to limit, in any material respect, Parent requires it or any of its Affiliates after Subsidiaries to deal exclusively or on a “sole source” basis with another party to such Contract with respect to the Closing;
subject matter of such Contract, (viiii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryfor, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other investment inbusiness combination, any Person;
(ix) any Contract required or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent St. Jxxxxx or any of its Affiliates after the ClosingSubsidiaries, (iv) is any other Contract or may amendment thereto that would be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants be filed as an exhibit to any Person any right SEC Report (as described in Items 601(b)(4) and 601(b)(10) of first refusal, right of first negotiation, option Regulation S-K under the 1933 Act) that has not been filed as an exhibit to purchase, option or incorporated by reference in St. Joseph’s SEC Reports filed prior to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivv) any Contract with the Company lease of real or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company personal property providing for annual lease payments by or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company St. Jxxxxx or its Subsidiaries in excess of $300,000 25,000 per annum other than financing leases entered into in the ordinary course of business in which St. Jxxxxx or any of its Subsidiaries is lessor, or (Bvi) aggregate payments to any Contract that involves expenditures or from the Company receipts of St. Jxxxxx or any of its Subsidiaries in excess of $1,500,000 over 25,000 per year not entered into in the life ordinary course of business consistent with past practice. The contracts of the agreement andtype described in the preceding sentence, in each case, that is whether or not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of St. Joseph’s Material Contracts (i) that is reflected as an exhibit to any SEC Report, (ii) 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 (iii) that is disclosed in Section 2.25 of the St. Jxxxxx Disclosure Schedule, or would be required to be so disclosed if in effect on the date of this Agreement: (A) each such Material Contract is in full force and effect; (B) neither St. Jxxxxx nor any of its Subsidiaries is in “Default” thereunder with respect to each Material Contract, as such term or concept is defined in each such Material Contract; (C) neither St. Jxxxxx nor any of its Subsidiaries has repudiated or waived any material provision of any such Material Contract; and (D) no other than purchase ordersparty to any such Material Contract is, invoicesto St. Joseph’s knowledge, in default in any material respect. True copies of all Material Contracts, including all amendments and similar confirmatory or administrative documents supplements thereto, that are ancillary not filed as exhibits to SEC Reports are attached to the main contractual relationship between St. Jxxxxx Disclosure Schedule.
(b) Neither St. Jxxxxx 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 St. Joseph’s own account or for the parties to a particular Contract account of one or group more of Contracts and that, in each case, do not contain any material executory its Subsidiaries or continuing terms, conditions, obligations or rights)their respective customers.
Appears in 2 contracts
Samples: Merger Agreement (St Joseph Capital Corp), Merger Agreement (Old National Bancorp /In/)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below Except for this Agreement and except for Contracts filed as exhibits to whichthe Company Reports, as of the date of this Agreement, none of the Company or its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and bound by:
(A) any Contract that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are would be required to be set forth on Section 3.13(a) filed by the Company pursuant to Item 4 of the Company Disclosure Schedule, Instructions to Exhibits of Form 20-F under the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Exchange Act;
(iB) any Contract relating to Indebtedness for borrowed money involving the payment or receipt of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled amounts by the Company or any of its Subsidiaries, except or relating to indebtedness for borrowed money or any lease or agreement under which the aggregate annual rental payments do not exceed financial guaranty, of more than $200,0001,000,000 in any calendar year on its face;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vC) any Contract that (A) limits or purports to limitcontains a put, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” call or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or right pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries could be required to make purchase or sell, as applicable, any payment equity interests of any Person or incur assets that have a fair market value or purchase price of more than $1,000,000;
(D) any Liability as a result Contract relating to the formation, creation, operation, management or control of any joint venture;
(E) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the consummation Company or any Person beneficially owning five percent or more of the transactions contemplated by this Agreement, termination outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of employment or bothForm 20-F under the Exchange Act; and
(xviiF) any non-competition Contract or other Contract that limits or purports to limit in any material respect the performance type of business in which requires either (A) annual payments to or from the Company or its Subsidiaries in excess may engage, the type of $300,000 goods or (B) aggregate payments to or from services which the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in excess which any of $1,500,000 over them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the life exception of the agreement and, in each case, that is not terminable by the applicable being filed as an exhibit to the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeReports is referred to herein as a “Material Contract”.
(iii) Each of the Material Contract Contracts is valid and binding on the Company or its Subsidiaries, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties 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 and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofas would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no breach or default under, under any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract Contracts by the Company or its Subsidiaries or, to and no event has occurred that with the Company’s Knowledge, lapse of time or the counterparties thereto. The giving of notice or both would constitute a breach or default thereunder by the Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatits Subsidiaries, in each casecase except as would not, do or would not contain any material executory reasonably be expected to, individually or continuing termsin the aggregate, conditions, obligations or rights)have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Acorn International, Inc.), Merger Agreement (Tongjitang Chinese Medicines Co)
Material Contracts. (a) Except as disclosed in Section 3.13(a) 3.10 of the Company Seller Disclosure Schedule contains Letter and for Contracts related to the Plans, none of the Acquired Entities is a listing of all Contracts described party to or bound by any Contract (including any Government Contract) in clauses (i) through (xiii) below to which, effect as of the date of this Agreement, Agreement and of the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities following nature (all such Contracts as are required to be set forth on disclosed by this Section 3.13(a) of the Company Disclosure Schedule3.10, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating pursuant to Indebtedness for borrowed money of which, the Company or any of its Subsidiaries or to incurred Indebtedness exceeding $1,000,000 for which any Acquired Entity will be liable following the placing of a Lien (other than a Permitted Lien) on any material assets or properties of Closing, including the Company or its SubsidiariesCredit Agreement;
(ii) that (A) involve the performance by an Acquired Entity of services of an amount or value (as measured by the revenue derived therefrom during the fiscal year ended December 31, 2017) in excess of $2,000,000 annually or (B) involve payments by the Acquired Entities in excess of $2,000,000 annually, unless, in the case of clauses (A) and (B), any such Contract is terminable by the Acquired Entities on not more than 60 days’ notice without material penalty;
(iii) which involve, as parties thereto, any Acquired Entity on the one hand, and any of the directors, officers, employees or equityholders of any Acquired Entity on the other hand, exceeding $250,000;
(iv) which prohibits any Acquired Entity from competing in the business of the Acquired Entities as conducted as of the date hereof or in any geographic area or that restricts any Acquired Entity’s ability to solicit or hire any person as an employee;
(v) that relates to the future disposition or acquisition of material assets or properties by any Acquired Entity except in the Ordinary Course of Business, or any merger or business combination with respect to any other Person;
(vi) that requires or provides for any capital expenditure in excess of $1,000,000;
(vii) for the provision of services to any Acquired Entity by any independent contractor for annual consulting fees in excess of $250,000 (other than any Contract that may be terminated by any party thereto upon 30 days or less advance notice);
(viii) under which any Acquired Entity leases, or is provided with the Company right to hold or its Subsidiaries is lessee of or holds or operates, in each caseoperate, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000250,000;
(iiiix) any Contract under which the Company or its Subsidiaries is lessor of any Acquired Entity leases, or permits any third party to hold or operate, in each case, any tangible property (other than real propertyReal Property), owned or controlled by the Company or its SubsidiariesCompany, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule250,000;
(x) which establish a joint venture, strategic alliance or material partnership involving the sharing of profits (other than any Contract with any Person (A) pursuant to which such Contracts solely among the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyAcquired Entities);
(xi) which involve the license or grant of rights licensed to or licensed from any Contract for Acquired Entity to Intellectual Property or Computer Software material to the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract Business but excluding (A) requiring monetary payments by any inbound agreements that have individual acquisition costs of $250,000 or less relating to “shrink wrap”, “click wrap” and similar generally available end-user licenses to software, (B) any outbound agreements that involve consideration of less than $250,000 over the Company or its Subsidiaries after 12 months prior to the date of this Agreement, (BC) any nonexclusive license to Owned Intellectual Property granted in the Ordinary Course of Business, and (D) any non-disclosure agreements or Company employee agreements;
(xii) with a Governmental Authority any labor union or collective bargaining association representing any employee of an Acquired Entity;
(Cxiii) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Contribution Agreement; and
(xiiixiv) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeReal Property Lease.
(b) As of the date of this Agreement: (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, and enforceable in accordance with its terms against is a valid and binding obligation of (A) the Company or its Subsidiaries andAcquired Entities party thereto, and (B) to the CompanySeller’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or each other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), party thereto; (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are applicable Acquired Entity is not in material breach or material violation of, or material default under any such Material Contract; (iii) no Material Contract has been terminated for cause in writing by any other party thereto; (iv) to the Seller’s Knowledge, no other party is in material breach or material violation of, or material default under, any Material Contract Contract; and (iiiv) no event Acquired Entity has occurred that (with given a written notice of its intent to terminate, materially modify, materially amend or without due notice or lapse otherwise materially alter the terms and conditions of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretohas received any written claim of default under any Material Contract. The Company Seller has furnished or made available to Parent the Purchaser true and complete copies of all the Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary including any amendments to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)such Material Contracts.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Hennessy Capital Acquisition Corp. III)
Material Contracts. (a) Section 3.13(a3.10(a) of the Company Disclosure Schedule contains Letter lists each of the following written contracts (the “Contracts”), to which the Company or its Subsidiary is a listing of all Contracts described in clauses party or is otherwise bound:
(i) through each contract that involves payment by or to the Company or any of its Subsidiaries of more than $250,000 per year and has continuing material obligations, rights or interests (xiiiother than (i) below a contract under which the sole continuing obligation is to whichmaintain confidentiality and (ii) contracts relating to the Company’s distribution segment, which do not need to be listed on Section 3.10(a) of the Company Disclosure Letter, unless such contracts involve payments of more than $750,000 per year);
(ii) each contract pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests, relating to the research, development, clinical trial, supply, manufacture, marketing or co—promotion of, or collaboration with respect to, any product or product candidate for which the Company or any of its Subsidiaries has an interest, and that involve the payment by the Company or any of its Subsidiaries of more than $250,000 per year;
(iii) each material license pertaining to Company Intellectual Property Rights pursuant to which the Company, its Subsidiary or any other party thereto has material continuing obligations, rights or interests;
(iv) each contract pursuant to which the Company, its Subsidiary or any other party hereto has material continuing obligations, rights or interests involving the payment of royalties or other amounts of more than $250,000 per year calculated based upon the revenues or income of the Company or its Subsidiary or income or revenues related to any product of the Company or its Subsidiary;
(v) all consulting contracts involving consideration in excess of $250,000 per year with consultants to the Company or any of its Subsidiaries;
(vi) all contracts evidencing indebtedness for borrowed money (other than guarantees) in excess of $250,000;
(vii) all leases involving Leased Real Property;
(viii) all contracts with any Governmental Entity that involve the payment by the Company or any of its Subsidiaries of more than $250,000 per year;
(ix) all contracts that limit or purport to limit the ability of the Company or its Subsidiary to compete with any Person or product;
(x) all “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); and
(xii) all other contracts, the absence of which would reasonably be expected to prevent or materially delay consummation of the transactions contemplated by this Agreement or otherwise prevent or materially delay the Company from performing its obligations under this Agreement.
(b) All the contracts that are required to be described in the Company SEC Reports or required to be filed as exhibits thereto have been described or filed as required.
(c) As of the date of this Agreement, each of the Company or its Subsidiaries Contracts is a party or by which they are bound, other than a Company Benefit Plan, valid and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) binding obligation of the Company Disclosure Schedule, (or the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) Subsidiaries of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments party thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledgeknowledge, the counterparties other parties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or and its Subsidiaries and, to the Company’s Knowledgeknowledge, the counterparties other parties thereto (subject to applicable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization, moratorium arrangement or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), .
(iid) Except as set forth on Section 3.10(d) of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries andis, nor to the Company’s Knowledgeknowledge is any other party, the counterparties thereto are not in material breach ofbreach, default or default under, any Material Contract violation (and (iii) no event has occurred that (with or without due notice not occurred through the Company’s or lapse any of time its Subsidiaries’ action or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries inaction or, to the Company’s Knowledgeknowledge, through the counterparties thereto. The action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of any Contract to which the Company has made available to Parent true and complete copies or any of all its Subsidiaries is now a party, or by which any of them or any of their respective properties or assets may be bound, except for breaches, defaults or violations that would not have, either individually or in the aggregate, a Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Watson Pharmaceuticals Inc), Merger Agreement (Andrx Corp /De/)
Material Contracts. (a) Except for this Agreement, the Parent Employee Benefit Plans and Policies, except as filed with, or disclosed or incorporated in, the Parent SEC Documents or except as set forth on Section 3.13(a) 4.16 of the Company Sellers’ Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreementhereof, the Company or its Subsidiaries no Seller is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including (i) any Contracts pursuant to which the Company has with no “material outstanding or executory obligations or Liabilities contract” (as such Contracts as are required to be set forth on Section 3.13(aterm is defined in Item 601(b)(10) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies Regulation S-K of the Contracts listed on Section 3.13(aSEC); (ii) any non-compete or exclusivity agreement that materially restricts the operation of Sellers’ core business; (iii) any asset purchase agreement, stock purchase agreement or other agreement entered into within the Company Disclosure Schedule have previously been made available past six years governing a material joint venture or the acquisition or disposition of assets or other property where the consideration paid or received for such assets or other property exceeded $500,000,000 (whether in cash, stock or otherwise); (iv) any agreement or series of related agreements with any supplier of Sellers who directly support the production of vehicles, which provided collectively for payments by Sellers to Parent such supplier in excess of $250,000,000 during the 12-month period ended December 31, 2008; (v) any agreement or its agents or representativesseries of related agreements with any supplier of Sellers who does not directly support the production of vehicles, together with all amendments thereto):
which, provided collectively for payments by Sellers to such supplier in excess of $100,000,000 during the 12-month period ended April 30, 2009; (ivi) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor purchase of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
aircraft; (vii) any Contract requiring the Company settlement agreement where a Seller has paid or its Subsidiaries may be required to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in pay an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
100,000,000 to settle the Claims covered by such settlement agreement; (ixviii) any material Contract required to that will, following the Closing, as a result of transactions contemplated hereby, be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company between or its Subsidiaries (or Parent among a Seller or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its SubsidiariesRetained Subsidiary, on the one hand, and Purchaser or any labor union, labor organization or works council representing employees of the Company or its SubsidiariesPurchased Subsidiary, on the other hand;
hand (xivother than the Ancillary Agreements); and (ix) any Contract agreements entered into in connection with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate a material joint venture (all Contracts of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmenttype described in this Section 4.16(a) being referred to herein as “Seller Material Contracts”);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ib) Each No Seller is in breach of or default under, or has received any written notice alleging any breach of or default under, the terms of any Seller Material Contract or material License, where such breach or default would reasonably be expected to have a Material Adverse Effect. To the Knowledge of Sellers, no other party to any Seller Material Contract or material License is valid in breach of or default under the terms of any Seller Material Contract or material License, where such breach or default would reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, each Seller Material Contract or material License is a valid, binding and binding on the Company or its Subsidiaries, as applicableenforceable obligation of such Seller that is party thereto and, to the Company’s KnowledgeKnowledge of Sellers, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, reorganizationmoratorium, moratorium fraudulent transfer and other similar Laws relating to or other Laws affecting generally the enforcement of creditors’ rights generally from time to time in effect and subject by general equitable principles relating to general enforceability, including principles of equity)commercial reasonableness, (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract good faith and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)fair dealing.
Appears in 2 contracts
Samples: Master Sale and Purchase Agreement (General Motors Corp), Master Sale and Purchase Agreement (General Motors Corp)
Material Contracts. (a) Section 3.13(aSchedule 3.14 sets forth a true, correct and complete list of all existing or pending contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which any Borrower Party or any of its Subsidiaries is a party (or intend to become a party) or to which any of its assets or properties is bound (or may become bound):
(i) under which any Borrower Party or any of its Subsidiaries is indemnified for or against any liability in excess of $250,000 or under which any Borrower Party or any of its Subsidiaries is or could be obligated to indemnify any Person in excess of $100,000;
(ii) under which any Borrower Party or any of its Subsidiaries leases personal property from or to third parties;
(iii) for the purchase or sale of products or other personal property or for the furnishing or receipt of services by any Borrower Party or any of its Subsidiaries (A) which calls for performance over a period of more than one (1) year and involves payments of more than $100,000 in the aggregate or (B) in which any Borrower Party or any of its Subsidiaries has agreed to purchase a minimum quantity of goods or services in excess of $200,000 in value or has agreed to purchase goods or services exclusively from any Person (provided, however, that it is agreed that the Borrower shall not be required to list on Schedule 3.14 any poultry purchase contracts entered into in the ordinary course of business, provided that such contracts will be deemed to be Material Contracts);
(iv) (A) granting representation, marketing or distribution rights, other than food brokers’ agreements entered into in the ordinary course of business, or (B) relating to Intellectual Property;
(v) regarding the financing of its business or any part of its business or operations;
(vi) establishing any partnership, any joint venture or any strategic alliance;
(vii) under which any Borrower Party or any of its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including Capital Lease Obligations);
(viii) concerning any confidentiality obligations entered into outside of the Company Disclosure Schedule contains ordinary course of business or any covenants or agreements restricting it from carrying on any business or from competing in any line of business or with any Person;
(ix) with officers, directors, employees, consultants or independent contractors of any Borrower Party or any of its Subsidiaries;
(x) resulting in the creation or incurrence of any Lien (including any precautionary lease filings);
(xi) involving any Affiliates of any Borrower Party or any of its Subsidiaries;
(xii) under which the consequences of a listing default or termination could have a Material Adverse Effect on any Borrower Party or any of all Contracts its Subsidiaries, whether individually or in the aggregate;
(xiii) under which any Borrower Party or any of its Subsidiaries will (A) receive aggregate payments from customers, (B) make aggregate payments to vendors or other suppliers or (C) make or receive aggregate payments to or from any other Persons, in each case in excess of $500,000 per annum;
(xiv) any collective bargaining agreement entered into by, or binding upon, the Borrower or any of its Affiliates; and
(xv) not entered into in the ordinary course of business and described in response to any of the foregoing clauses. All of the types of contracts, commitments, licenses, agreements, obligations or arrangements described in clauses (i) through (xiiixv) below above, together with the real property leases and other interests described in Section 3.25, whether entered into prior to, on or after the Effective Date, are collectively referred to whichherein as the “Material Contracts.” At the request of the Lender, the Borrower shall deliver to the Lender a true, correct and complete copy of each of the written Material Contracts, and a written summary of each of the oral Material Contracts, including all amendments, supplements or other modifications thereto.
(b) Each Material Contract existing as of the date hereof is (i) a legal, valid and binding obligation of this Agreementthe Borrower Party or any Subsidiary that is a party thereto, enforceable against it in accordance with its terms (assuming the Company enforceability of such Material Contract against the other parties thereto), (ii) to the best knowledge of the Borrower Parties, a legal, valid and binding obligation of the other parties thereto, enforceable against such other parties in accordance with its terms (assuming the enforceability of such Material Contract against any Borrower Party or any of its Subsidiaries party thereto) and (iii) in full force and effect on the date hereof. Any Borrower Party or any of its Subsidiaries, on the one hand, and, to the best knowledge of the Borrower Parties, all other parties to the existing Material Contracts, on the other hand, are in substantial compliance with the terms thereof, and no default or event of default by any Borrower Party or any of its Subsidiaries, as the case may be, or, to the best knowledge of the Borrower Parties, any other party thereto exists thereunder.
(c) No Borrower Party or any of its Subsidiaries is a party to any contract, commitment, license, agreement, obligation or by which they are bound, other than a Company Benefit Plan, and arrangement that are not expired restricts it from carrying on its business or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractpart thereof, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete competing 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Samples: Loan and Security Agreement (Overhill Farms Inc), Loan and Security Agreement (Levine Leichtman Capital Partners Ii Lp)
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 3.13(a4.14(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, and the Company or its Subsidiaries is has made available to Parent true and complete copies, of:
(i) each Contract that would be required to be filed by the Company as a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract to which the Company has with no material outstanding or executory obligations or Liabilities any Company Subsidiary is a party that (such Contracts as are required to be set forth on Section 3.13(aA) restricts the ability of the Company Disclosure Scheduleor any Company Subsidiary to compete in any business or with any Person in any geographical area, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a(B) of requires the Company Disclosure Schedule have previously been made available or any Company Subsidiary to Parent conduct any business on a “most favored nations” basis with any third party (C) provides for “exclusivity” or its agents any similar requirement in favor of any third party or representatives(D) provides preferential rights or rights of first or last offer or refusal to any third party, together with all amendments thereto):except in the case of each of clauses (A), (B), (C) and (D) for such restrictions, requirements and provisions that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iiii) each Contract under which the Company or any Company Subsidiary licenses or sublicenses Intellectual Property from or to any third party (other than generally commercially available, off-the-shelf software programs), except for such licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iv) each Contract to which the Company or any Company Subsidiary is a party that provides for any payment, receipt or expenditure in excess of $250,000 in any twelve (12) month period;
(v) each Contract that constitutes a commitment relating to Indebtedness for borrowed money or the deferred purchase price of property by the Company or its Subsidiaries any Company Subsidiary (whether incurred, assumed, guaranteed or to the placing secured by any asset) in excess of a Lien ($250,000, other than a Permitted Lien) on any material assets Contracts solely between or properties of among the Company or its Subsidiariesand/or any Company Subsidiary;
(iivi) any each Contract under which the Company or its Subsidiaries any Company Subsidiary is lessee of the landlord, sublandlord, tenant, subtenant or holds occupant with respect to any material real property leased, subleased, licensed or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000otherwise occupied;
(iiivii) each Contract for any Contract under which Derivative Transaction;
(viii) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or its Subsidiaries is lessor of any Company Subsidiary;
(ix) each joint development agreement, exploration agreement, participation, farmout, farm-in or permits any third party to hold program agreement or operate, in each case, any tangible property (other than real property), owned or controlled by similar Contract requiring the Company or its Subsidiaries, except for any lease or agreement under which Subsidiary to make expenditures that would reasonably be expected to be in excess of $250,000 in the aggregate annual rental payments do not exceed $200,000during the twelve (12) month period following the date of this Agreement, other than customary joint operating agreements and continuous development obligations under leases relating to any of the Oil and Gas Properties of the Company or any Company Subsidiary;
(ivx) each Contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes of Hydrocarbons of the Company or any Company Subsidiary;
(Axi) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, Contract that would or would reasonably be expected to require (based on any occurrenceprevent, development, activity materially delay or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of materially impede the consummation of the transactions contemplated by this AgreementAgreement or that, termination upon the consummation of employment the Merger, would (either alone or bothupon the occurrence of any additional acts or events, including the passage of time) result in any payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any payment or benefits, from Parent, Merger Sub, the Company or any of their respective Subsidiaries to any officer, director, consultant or employee of any of the foregoing; and
(xviixii) any other each Contract the performance of which requires either (A) annual payments to with or from binding upon the Company or its Subsidiaries in excess any Company Subsidiary or any of $300,000 their respective properties or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life assets that is of the agreement and, type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
clauses (i) Each Material Contract through (xii) above is valid referred to herein as a “Company Specified Contract.”
(b) As of the date of this Agreement, each of the Company Specified Contracts is valid, binding and binding enforceable on the Company or its the Company Subsidiaries, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect (i) except for such failures to be valid, binding or enforceable or to be in full force and enforceable effect as would not reasonably be expected to, individually or in accordance with its terms against the aggregate, have a Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto Material Adverse Effect and (subject to applicable ii) except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting generally the enforcement of creditors’ rights and subject to general 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, (ii) there is no default under any Company Specified Contract by the Company or its the Company Subsidiaries andor, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract other party thereto, and (iii) no event has occurred that (with or without due notice or lapse of time time, or both) would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries any Company Subsidiary or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatparty thereto, in each casecase except as would not reasonably be expected to, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (Sandridge Energy Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money None of the Company or its Subsidiaries the Company Subsidiary is a party to or to the placing of a Lien obligated under:
(other than a Permitted Liena) on any material assets or properties of contract which obligates the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee Subsidiary for any payments in excess of or holds or operates250,000 RMB, in each casethe aggregate, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under and which the aggregate annual rental payments do is not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled terminable by the Company or its Subsidiaries, except for any lease the Company Subsidiary without additional payment or agreement under which the aggregate annual rental payments do not exceed $200,000penalty within ninety (90) days of delivery of notice of such termination;
(ivb) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, contract which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from restricts the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete Subsidiary from engaging in any line of business or competing with any Person or in any area geographic region;
(c) any partnership, limited liability company agreement, joint venture or that would so limit other similar agreement or purport arrangement relating to limitthe formation, creation, operation, management or control of any partnership or joint venture which is not a wholly-owned subsidiary of the Company;
(d) any contract (other than with the Company Subsidiary) under which Indebtedness in excess of 250,000 RMB is outstanding or pursuant to which any material respect, the operations of Parent property or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability asset of the Company or its Subsidiaries the Company Subsidiary having a book value of more than 250,000 RMB is mortgaged, pledged or otherwise subject to sell, manufacture, develop, commercialize, test an Encumbrance or research productsany contract restricting the incurrence of Indebtedness or the incurrence of Encumbrances or restricting the payment of dividends;
(e) any contract entered into within three (3) years prior to the date hereof for the acquisition or disposition, directly or indirectly through third parties(by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of 250,000 RMB and any term sheets or letters of intent in effect and not expired as of the date hereof, whether or not binding, relating to any of the foregoing in this clause (e);
(f) other than contracts for ordinary repair and maintenance, any contract relating to the development or construction of, or additions or expansions to, the Leased Real Properties, under which the Company or the Company Subsidiary has, or expects to solicit incur, an obligation in excess of 250,000 RMB in the aggregate that has not been satisfied as of the date hereof;
(g) any contract to which the Company or the Company Subsidiary has continuing indemnification obligations or potential employee or customerliability under any purchase price adjustment that, in each case, could reasonably be expected to result in future payments of the Company or such Company Subsidiary of more than 250,000 RMB or any material respect contract relating to the settlement or that would so limit proposed settlement of any Legal Action, which involves the issuance of equity securities or purports to limitpayment of an amount, in any material respectsuch case, Parent or any having a value of its Affiliates after the Closingmore than 250,000 RMB;
(vih) any Contract requiring contract for the employment of, or receipt of any future capital commitment services from, any director, officer or capital expenditure (other employee on a full-time, part-time, consulting or series of capital expenditures) by other basis providing annual case compensation from the Company or its Subsidiaries in an amount any Subsidiary in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement250,000 RMB;
(viii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to contract which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment relates to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xij) any Contract contract (other than contracts referenced in clause (a) through (i) of this Section 5.15) which by its terms call for payments by the disposition Company and the Company Subsidiary in excess of 250,000 RMB in the aggregate;
(k) any portion of the assets contract with any current officer or business director of the Company or its Subsidiaries or for the acquisition by the Company Subsidiary or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiariesthe Company Subsidiary, on the other hand;including any CZH Transferor and any CZH Holder; or
(xivl) any Contract with contract that requires a consent to or otherwise contains a provision relating to a “change of control’, or any contract that would prohibit or delay the Company consummation of the transactions contemplated by this Agreement, or its Subsidiariesthat would trigger, on the one handgive rise to, and accelerate or augment any officer, director, manager, stockholder, member of an Affiliate liabilities or terminate or modify any rights of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability Subsidiary as a result of the consummation of the transactions contemplated by hereby (the contracts described in clause (a) through (k) of this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid Section 5.15 and binding on the Company or its Subsidiaries, as applicable, to the Company’s KnowledgeLease Documents together with all exhibits and schedules thereto collectively, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any “Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightsContracts”).
Appears in 2 contracts
Samples: Share Exchange Agreement (SolarMax Technology, Inc.), Share Exchange Agreement (SolarMax Technology, Inc.)
Material Contracts. For purposes of this Agreement, “Novadigm Material Contract“ shall mean the following to which Novadigm or any of its Subsidiaries is a party or bound (aexcluding in any case any Contract that has expired or terminated in accordance with its terms or otherwise under which no party has any continuing rights or obligations):
(i) Section 3.13(aany “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company Disclosure Schedule contains Securities Act) to which Novadigm or any of its Subsidiaries is a listing party or bound (whether or not filed by Novadigm with the SEC);
(ii) any employment or consulting Contract with any executive officer or other Novadigm Employee or member of all Novadigm’s Board of Directors earning an annual salary from Novadigm or any of its Subsidiaries in excess of the lowest annual base salary reported in Novadigm’s most recent annual report on Form 10-K or definitive proxy statement for any of Novadigm’s “named executive officers,” as such term is defined in Item 402(a)(3) of Regulation S-K of the Securities Act, other than those that are terminable by Novadigm or any of its Subsidiaries on no more than thirty (30) days notice without liability or financial obligation to Novadigm;
(iii) any Contract or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the 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;
(iv) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the distribution, sale or license of services or hardware or software products in the ordinary course of business, which indemnification does not materially differ from the provisions embedded in Novadigm’s standard form of software license agreement as provided to Parent;
(v) any Contract containing any covenant (A) limiting in any respect the right of Novadigm or any of its Subsidiaries to engage in any line of business, to make use of, disclose, enforce or assign any Intellectual Property or compete with any Person in any line of business or to compete with any person, (B) granting any exclusive rights, (C) prohibiting Novadigm or any of its Subsidiaries (or, after the Closing Date, Parent) from engaging in business with any Person or levying a fine, charge or other payment for doing so, or (D) otherwise prohibiting or limiting the right of Novadigm or its Subsidiaries to purchase, sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or subassemblies;
(vi) any Contract relating to the disposition or acquisition by Novadigm or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Novadigm or any of its Subsidiaries has any material ownership interest in any other Person or other business enterprise other than Novadigm’s Subsidiaries;
(vii) any dealer, distributor, joint marketing or development agreement, under which Novadigm or any of its Subsidiaries are obligated to make payments, or incur costs in excess of $50,000 per year, to jointly market any product, technology or service, in either case which may not be canceled without penalty upon notice of ninety (90) days or less; or any agreement pursuant to which Novadigm or any of its Subsidiaries have continuing obligations to jointly develop any Intellectual Property that will not be owned solely by Novadigm or one of its Subsidiaries;
(viii) any Contract to provide source code to any third party for any Novadigm Product, including a Contract to put such source code in escrow;
(ix) any Contract (A) containing any consulting or other professional service obligation on the part of Novadigm or any of its Subsidiaries for which Novadigm is entitled to receive in excess of $50,000 per year over the remaining term of such obligation or (B) containing any obligation to provide support or maintenance for Novadigm Products under any terms or conditions other than Novadigm’s standard terms and conditions for any period in excess of 12 months, other than those obligations that are terminable by Novadigm or any of its Subsidiaries on no more than thirty (30) days notice without liability or financial obligation to Novadigm or its Subsidiaries;
(x) any Contract authorizing another Person to provide support or maintenance to customers of the Novadigm Products on behalf of Novadigm, including distributors or resellers that are obligated to provide such support or maintenance;
(xi) any Contract to license any third party to manufacture or reproduce any Novadigm Products or Novadigm Technology or any Contract to sell or distribute any Novadigm Products or Novadigm Technology, except (A) agreements with distributors or sales representatives in the ordinary course of business consistent with past practice, or (B) agreements allowing internal copies made or to be made by end-user customers in the ordinary course of business consistent with past practice;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than accounts receivables and payables in the ordinary course of business;
(xiii) (A) any settlement agreement entered into within five (5) years prior to the date of this Agreement relating to Intellectual Property, and (B) any settlement agreement not relating to Intellectual Property entered into within two (2) years prior to the date of this Agreement, other than (I) releases immaterial in nature or amount entered into with former employees or independent contractors of Novadigm in the ordinary course of business consistent with past practice in connection with the routine cessation of such employee’s or independent contractor’s employment with Novadigm or (II) settlement agreements for cash only (which has been paid) and does not exceed $50,000 as to such settlement;
(xiv) any other agreement, contract or commitment under which Novadigm or any of its Subsidiaries are obligated to make payment, or incur costs in excess of $50,000 or more in any individual case not described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)above;
(xv) any employment, consulting, bonus, commissions Novadigm IP Agreement licensing to Novadigm or any other compensation Contract with an employee of its Subsidiaries material Technology or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per yearIntellectual Property not described in clauses (i) through (xiv) above;
(xvi) any employment Contract, or consulting group of Contracts with a Person (or group of affiliated Persons), not described in clauses (i) through (xv) above or (xvii) below the termination or breach of which would be reasonably expected to have a material effect on any material product or service offerings of Novadigm or otherwise have a Material Adverse Effect on Novadigm; or
(xvii) any Contract with severancewhere a federal, change state or local entity or other Governmental Entity is the ultimate customer in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company which Novadigm or any of its Subsidiaries to make is the prime or subcontractor at any payment or incur any Liability as tier (each a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights“Government Contract”).
Appears in 1 contract
Material Contracts. (a) Section 3.13(aSchedule 3.17(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedules sets forth, as of the date hereof, a list of this Agreement, each of the contracts that is of a type described below to which the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities is bound (such Contracts contracts as are required to be set forth on Section 3.13(ain Schedule 3.17(a) of the Company Disclosure ScheduleSchedules, the “Material Contracts”). Trueincluding any purchase orders, correct service orders, statements of work, invoices and complete copies of the Contracts listed similar documents (which need not be scheduled on Section 3.13(aSchedule 3.17(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments theretoSchedules) being “Material Contracts”):
(i) all contracts with any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesMaterial Supplier;
(ii) any Contract under all contracts to which the Company or its Subsidiaries is lessee of or holds or operates, has paid more than $1,000,000 in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments past 12 months and that do not exceed $500,000give the Company the right to terminate such contract upon 60 days’ notice or less to the other party without material penalty;
(iii) any Contract under all contracts pursuant to which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, has received more than $1,000,000 in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000past 12 months;
(iv) all contracts with any (A) joint ventureGovernmental Authority, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Permits;
(v) except with respect to contracts contemplated by Section 3.17(a)(i), any Contract that contracts under which the Company purchases grapes for use in the Business or sells grapes from its vineyards, in each case involving payments of more than $250,000 in any 12-month period;
(vi) (A) limits contracts relating to the mortgaging, pledging or purports to limit, in otherwise granting of an Encumbrance (other than any Permitted Encumbrance) on any material respect, the freedom asset or group of assets of the Company (without regard to whether or its Subsidiaries not the same will be outstanding as of the Closing), or under which the Company has the right or obligation to engage incur the same and (B) any loans to or investments in any Person, other than loans or investments among the Company, in each case of clauses (A) and (B), in all cases in an aggregate amount in excess of $250,000;
(vii) any collective bargaining agreement or other contract with any Union;
(viii) all contracts that are material to the Business and that limit or purport to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time, or that would so limit restrict the right of the Company to sell to or purport to limitpurchase from any Person, in any material respect, or that grant the operations of Parent other party or any of its Affiliates after the Closing, (B) contains any exclusivity, third party “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent status or any type of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personspecial discount right;
(ix) all contracts for any Contract required to be disclosed on Section 3.19 of joint venture, partnership or similar arrangement by the Company Disclosure ScheduleCompany;
(x) any Contract with any Person all contracts for (A) pursuant the sale or purchase of personal property having a value individually, with respect to which all sales or purchases thereunder, in excess of $1,000,000, other than agreements entered into in the Company or its Subsidiaries (or Parent or any ordinary course of its Affiliates after the Closing) is or may be required to pay milestonesbusiness, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or and (B) the lease of personal property under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyaggregate annual rental payments exceed $1,000,000;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any all licenses, sublicenses and other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or written agreements under which the Company is a licensee or its Subsidiaries has otherwise is authorized to use any continuing obligation with respect Intellectual Property, in each case which contracts are material to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationthe Business;
(xii) any settlementall contracts for the sale or purchase of real estate, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary other than such contracts pursuant to which there are no material obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andongoing;
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handall Leases;
(xiv) any Contract with all contracts under which the Company provides or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company receives vineyard management services or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)farm labor contractor services;
(xv) any employmentagency, consultingdealer, bonussales representative, commissions broker or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments marketing contracts in excess of more than $500,000 250,000 per yearannum;
(xvi) all contracts relating to the settlement of any material Action containing any material ongoing requirements or restrictions on the Company (excluding any Actions that do not (A) involve injunctive or equitable relief against the Company or (B) involve liability in excess of $250,000);
(xvii) any contract for the employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in engagement of any obligation (absolute or contingent) Service Provider of the Company on a full time, part time, consulting, or any other basis providing (A) base annual compensation in excess of its Subsidiaries to make any payment $150,000, (B) for payments of cash or incur any Liability as a result of other compensation in connection with the consummation of the transactions contemplated by this Agreementhereby, or (C) for severance or termination payments upon a termination of the employment or bothservice of the applicable Service Provider of the Company; and
(xviixviii) any contract providing for the acquisition or sale of any business (other Contract than sales of inventory in the performance ordinary course of which requires either (Abusiness) annual payments with any outstanding obligations that are material to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeCompany.
(ib) The Company has made available to Acquiror true and complete copies of each Material Contract. Each Material Contract is valid constitutes a legal, valid, and binding on the Company or its Subsidiaries, as applicable, to obligation of the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms and conditions (subject to the Enforceability Exceptions) against the Company or its Subsidiaries (and, to the Knowledge of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or each other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equityparty thereto), except as would not, individually or in the aggregate, reasonably be expected to be material to the Company. The Company is not (ii) the Company or its Subsidiaries and, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not no other party to any such Material Contract is) in material breach of, default under or default under, violation of any Material Contract and (iii) no event has occurred that (Contract, with or without due notice or the lapse of time or the giving of notice or both) , except as would result not, individually or in the aggregate, reasonably be expected to be material to the Company, nor has the Company received written notice of any such breach, default, violation, change to or receipt of a material breach of, or default underproposal with respect to, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 1 contract
Material Contracts. (a) Except for Contracts listed in Section 3.13(a) 2.18 of the Disclosure Schedule, filed as exhibits to the Company SEC Documents and Government Contracts, neither the Company nor any Subsidiary of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any written Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any oral Contract for involving the disposition of any portion of the assets payment or business of the Company or its Subsidiaries or for the acquisition receipt by the Company or its Subsidiaries of $50,000 or more (each, a “Material Contract”), including:
(a) any “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the assets Securities Act) with respect to the Company and its Subsidiaries (whether or business not filed by the Company with the SEC) and each Material Government Contract;
(b) any distributor, reseller, sales, advertising, agency, manufacturer’s representative, joint marketing, joint development, joint venture or original equipment manufacturing Contract that creates an exclusive relationship between the Company and such party or that is not terminable at will by the Company on thirty (30) days’ notice or less;
(c) any continuing Contract for the purchase of materials, supplies, equipment or services involving in the case of any such Contract more than $100,000 over the life of the Contract;
(d) any customer Contract that materially deviates from the Company’s standard form of customer Contract attached at Section 2.18(d) of the Disclosure Schedule;
(e) any customer Contract for which, to Seller’s knowledge, the amount paid to the Company or any of the Subsidiaries of the Company under such Contract is less than the cost to the Company and the Subsidiaries of the Company to perform the services under such Contract and any customer Contract for which, to Seller’s knowledge, the cost of any remaining services to be performed under such Contract is, or is anticipated by Seller to be, more than the amount remaining to be paid (including any amounts that have already been paid that have been booked as deferred revenue, and have not been recognized as revenue as of the Company Balance Sheet Date) to the Company or the Subsidiaries of the Company for the services remaining to be performed under such Contract;
(f) any trust indenture, mortgage, promissory note, loan agreement or other Person Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(other than acquisitions g) any Contract for any capital expenditure in excess of $50,000 individually or dispositions made $150,000 in the Ordinary Course of Business), or under aggregate;
(h) any Contract in accordance with which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price Subsidiary of the Company is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other contingent personal property or deferred payment obligationreal property;
(xiii) any settlement, conciliation license or similar other Contract providing any Person with rights to any Company Intellectual Property (A) requiring monetary payments other than non-exclusive licenses granted by the Company or its Subsidiaries after in the date ordinary course of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingbusiness); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivj) any Contract with any Person with whom the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate Subsidiary of the Company or its Subsidiaries or any does not deal at arm’s length, including Affiliates of their respective the Company, Seller and Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)of Seller;
(xvk) any employmentagreement of guarantee, consultingsupport, bonusindemnification, commissions assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per yearPerson;
(xvil) any employment Contract relating to the disposition or consulting Contract with severance, change in control, retention or similar arrangements, that will result acquisition of any material interest in any obligation business enterprise outside the ordinary course of the Company’s business;
(absolute m) any Contract relating to settlement of any administrative or contingentjudicial proceedings within the past five years; or
(n) any Contract that results in any Person holding a power of attorney from the Company or any Subsidiary of the Company that relates to the Company, any Subsidiary of the Company or any of its Subsidiaries to make any payment their respective businesses. To Seller’s knowledge, all Material Contracts are in executed written form and the Company or incur any Liability as a result the applicable Subsidiary of the consummation Company has performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in default in respect of, any Material Contract and, to Seller’s knowledge, each of the Material Contracts is in full force and effect. To Seller’s knowledge, the ability of each of the Company and each Subsidiary of the Company to exercise all of its rights under the Contracts to which it is a party without the payment of any additional amounts of consideration other than ongoing fees, royalties or payments that it would otherwise be required to pay in accordance with the terms of such Contracts had the transactions contemplated by this AgreementAgreement not occurred, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life will not be adversely affected by reason of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticetransactions contemplated hereby.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 1 contract
Material Contracts. (a) Section 3.13(a3.17(a) of the Company Disclosure Schedule contains Letter sets forth a listing list of all Material Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates properties or assets is bound (excluding employee confidentiality other than this Agreement and invention assignment agreements, equity the Company Plans) that:
(i) is or incentive equity documents, would be required to be filed by the Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for atas a “material contract” pursuant to Item 601(b)(10) of Regulation S-will employment)K or that would be required to be disclosed under Item 404 of Regulation S-K;
(xvii) any employmentis with respect to a joint venture, consultingpartnership, bonusstrategic alliance, commissions limited liability corporation or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per yearsimilar arrangement;
(xviiii) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) provides for Indebtedness of the Company or any of its Subsidiaries to make having an outstanding or committed amount in excess of $5 million, other than Indebtedness between or among any payment or incur any Liability as a result of the consummation Company and any of the transactions contemplated by this Agreement, termination of employment or both; andits Subsidiaries;
(xviiiv) relates to the acquisition or disposition of any other business or assets (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract the performance in excess of which requires either $5 million (A) annual payments that was entered into on or after January 1, 2016 or (B) pursuant to which any material earn-out or from deferred or contingent payment obligations remain outstanding (in each case excluding, for the avoidance of doubt, acquisitions or dispositions of supplies, inventory, merchandise or products in the ordinary course of business or of supplies, inventory, merchandise or products that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries);
(v) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Subsidiaries, prohibits the pledging of the capital stock or other equity interests of the Company or any of its wholly owned Subsidiaries or prohibits the issuance of any guarantee by the Company or any of its wholly owned Subsidiaries;
(vi) is an IP License Agreement;
(vii) is material to the business of the Company and its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Subsidiaries or any person that controls, or is under common control with, the Company from competing in any line of business or grants a right of exclusivity to any person that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, other than (A) Contracts with suppliers, distributors or vendors containing geographic restrictions on where the Company or any of its Subsidiaries are permitted to sell supplies, inventory, merchandise, products or other assets purchased by the Company or any of its Subsidiaries under such Contracts and (B) Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than 90 days’ notice without payment by the Company or any of its Subsidiaries of any material penalty;
(viii) is a settlement, conciliation or similar agreement with or before any Governmental Authority and pursuant to which the Company will be required after the date of this Agreement to pay consideration in excess of $300,000 500,000;
(ix) is outside the ordinary course of business and requires by its terms, or is reasonably likely to require, the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount having an expected value in excess of $1 million in the fiscal year ending December 31, 2017 or in any fiscal year thereafter;
(x) contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any person;
(xi) is a Government Contract; or
(xii) is a Contract with (A) any of the Company’s ten largest vendors based on the total amount of payments received by each such vendor from the Company in the fiscal year ending December 31, 2016 or (B) aggregate payments to any of the Company’s ten largest customers or from distributors based on the total amount of revenue received by the Company from each such customer or its Subsidiaries distributor in excess of $1,500,000 over the life of the agreement andfiscal year ending December 31, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice2016.
(b) The Company has made available to Parent an unredacted, accurate and complete copy of each Material Contract or has publicly made available such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (XXXXX) database of the SEC; provided that certain Material Contracts have been made available to Parent with names and certain personal information redacted. Except as would not reasonably be expected to have a Material Adverse Effect, as of the date hereof, (i) Each each Material Contract is valid and binding on the Company or its Subsidiariesapplicable Subsidiary, as applicable, and to the Knowledge of the Company’s Knowledge, each other party thereto, subject to the counterparties theretoBankruptcy and Equity Exception, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andterms, except to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)extent such Material Contract has expired in accordance with its terms, (ii) neither the Company or nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach or violation of, or in default under, any Material Contract and (iii) to the Knowledge of the Company, no event has occurred that or condition exists which (with or without due notice or lapse of time time, or both) would result in constitute a material default on the part of the Company or any of its Subsidiaries under any Material Contract. Since January 1, 2016 through the date hereof, the Company has not received any written notice regarding any violation or breach of, or default under, under any Material Contract by that has not since been cured, except for violations or breaches that would not reasonably be expected to have a Material Adverse Effect. Neither the Company or nor any of its Subsidiaries orhas waived in writing any rights under any Material Contract, other than waivers that would not reasonably be expected to have a Material Adverse Effect. To the Knowledge of the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordershereof, invoices, and similar confirmatory no party to any Material Contract has given the Company or administrative documents that are ancillary any of its Subsidiaries written notice of its intention to the main contractual relationship between the parties to a particular Contract cancel or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)terminate such Material Contract.
Appears in 1 contract
Material Contracts. Schedule 3.17 sets forth each of the following Applicable Contracts to which Seller or its Affiliate is a party (or a successor to a party) (collectively, the "Material Contracts"):
(a) Section 3.13(a) any such Contract that is an indenture, mortgage, loan, credit agreement, sale-leaseback, guaranty of the Company Disclosure Schedule contains a listing any obligation, bond, letter of all Contracts described in clauses (i) through (xiii) below to whichcredit, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariessimilar Contract;
(iib) any such Contract under which that constitutes a partnership agreement, joint venture agreement, joint development agreement, joint operating agreement, farmin or farmout agreement, exploration agreement, participation agreement or similar Contract where the Company or its Subsidiaries primary obligation has not been completed prior to the Effective Time, insofar as the same is lessee of or holds or operates, applicable to any Wellbore Interest (in each case, excluding any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, tax partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vc) any such Contract containing a guarantee by Seller or any of its Affiliates, insofar as the same is applicable to any Wellbore Interest;
(d) any Affiliate Contract, other than any Closing Document or Ancillary Agreement;
(e) any Contract that (A) limits constitutes an area of mutual interest agreement or any other agreement that purports to limitrestrict, in any material respect, the freedom of the Company or 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 limitprohibit the manner in which, or the locations in any material respectwhich, the operations of Parent Seller or any of its Affiliates (or after the Closing, (BIssuer) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or conducts business that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates will be binding on Issuer after the Closing;
(vif) any Contract requiring any future capital commitment that can reasonably be expected to result in aggregate payments or capital expenditure (other Liabilities owed or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advanceborne by, or assignment aggregate revenues to, Issuer of payment more than $100,000 (net to the Wellbore Interests) during the current or any subsequent fiscal year (based solely on the terms thereof and current volumes, without regard to any Person outside of the Ordinary Course of Business or, individually expected increase in volumes or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingrevenues); and
(xiiig) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either is (A) annual payments to for the gathering, treatment, storage, transportation or processing of Hydrocarbons produced from the Company or its Subsidiaries in excess of $300,000 Wellbore Interests or (B) aggregate payments to for the sale, purchase, exchange, or other disposition of Hydrocarbons produced from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andWellbore Interests, in each case, that is not terminable by case at or downstream of the applicable the Company Custody Transfer Points (whether or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding not set forth on the Company or its Subsidiaries, as applicable, to the Company’s KnowledgeSchedule 3.17, the counterparties theretoforegoing in this clause (g), and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledgecollectively, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights"Midstream Contracts").
Appears in 1 contract
Samples: Asset Purchase Agreement (Alpine Summit Energy Partners, Inc.)
Material Contracts. (a) Except for the intellectual property licenses contained in Article III of the Master Agreement, Section 3.13(a4.3(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to which, complete and accurate list as of the date hereof of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant following contracts to which the Company has with no material outstanding or executory obligations or Liabilities Seller is party (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating contracts granting to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on Seller any material assets right under or properties of with respect to any trademark, service mxxx, certification mxxx, trade name, brand name, trade dress, logo, business or product name, slogan, or registration or application for registration thereof used in the Company Business or its Subsidiaries;the Rite Aid Business; and
(ii) any Contract contracts under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in Seller grants any material respect, the freedom of the Company right under or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;Property to another Person.
(xib) any Contract for Copies of all Material Contracts have been previously provided or made available to the disposition of any portion Purchaser or Purchaser’s counsel, and such copies are true, complete and correct. Except as disclosed in Section 4.3(b) of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract Disclosure Letter: (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with each IP License and Third Party IP License is a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on obligation of the Company or its Subsidiaries, as applicableSeller and, to the CompanySeller’s Knowledge, the counterparties other parties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, except to the Company’s Knowledge, the counterparties thereto (subject to applicable extent that its enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws similar laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equityequity (regardless of whether enforcement is considered in a proceeding in equity or at law), ; (iiB) the Company or its Subsidiaries and, Seller has performed all material obligations required to the Company’s Knowledge, the counterparties thereto are be performed by it to date under each IP License and Third Party IP License and is not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or the giving of notice, or both) would result in a material breach of, or material default under, any Material Contract by the Company or its Subsidiaries or, thereunder; and (C) to the CompanySeller’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as each of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract such IP License and Third Party IP License has in all material respects performed all obligations required to be performed by it under such IP License and Third Party IP License and is not (with or group without the lapse of Contracts and thattime or the giving of notice, or both) in each case, do not contain any material executory breach or continuing terms, conditions, obligations or rights)material default thereunder.
Appears in 1 contract
Samples: Intellectual Property Purchase Agreement (Footstar Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as As of the date of this Agreement, there does not exist any violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause or result in a violation or default under) any material contract (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) to which the Company or any of its Subsidiaries is a party or by which they are any of them or any of their properties or assets is bound, other except for such violations or defaults as have been waived or which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Other than a Company Benefit Plan, and those contracts that are not expired or have not been terminated filed as exhibits to the SEC Reports filed and not including any Contracts pursuant publicly available prior to which the Company has with no material outstanding or executory obligations or Liabilities date of this Agreement (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Filed Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a3.21(b) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativeslists all written and oral contracts, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money agreements, guarantees, leases, and executory contracts that exist as of the Company or its Subsidiaries or date hereof to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or any of its Subsidiaries is lessee a party or by which it is bound that (i) are required to be filed as an exhibit to an SEC Report, (ii) materially restrict or would materially restrict the ability of the Company, Parent (after giving effect to the consummation of the Merger) or holds any of their respective Subsidiaries from competing or operatesotherwise conducting their respective businesses substantially as such businesses are conducted on the date of this Agreement, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate contain minimum annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom requirements of the Company or its Subsidiaries to engage make or compete become liable to make payments of $1,000,000 or more in any line of business or with any Person or in any area or that would so limit or purport to limit12-month period, in any material respectand, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xiii) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person and (other than acquisitions or dispositions made in the Ordinary Course of Businessiii), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with have a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments term of more than $500,000 per year;
(xvi) any employment one year and cannot be cancelled on less than 90 days’ notice without a material penalty or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of other material financial cost to the Company or any of its Subsidiaries (the contracts so described and the Filed Contracts are referred to make herein collectively as the “Contracts”).
(c) Except as set forth in Section 3.21(c) of the Company Disclosure Schedule and except for open purchase orders entered into in the ordinary course of business for materials or supplies, there does not exist any payment contract to which the Company or incur any Liability as of its Subsidiaries is a result party providing for its purchase from a third party, at a cost of $1,000,000 or more in any twelve-month period, of products for resale by the Company or any of its Subsidiaries at retail: (i) under which a violation or default would be caused by the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, termination of employment hereby; or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company that cannot by virtue of its terms be cancelled or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract terminated by the Company or any of its Subsidiaries orSubsidiaries, without a material penalty or other material financial cost to the Company’s KnowledgeCompany or any of its Subsidiaries, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof on less than ninety (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary 90) days’ notice to the main contractual relationship between the parties other party to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)such Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) Part 2.12(a)-1 of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichidentifies, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) each of the following Company Disclosure ScheduleContracts, the “Material Contracts”). True, correct excluding any Parent Contracts and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Bids:
(i) any Contract Company Contract: (A) relating to Indebtedness for borrowed money the employment of, or the performance of services by, any officer; or (B) pursuant to which any of the Company Acquired Companies is or its Subsidiaries may become obligated to make any bonus or to the placing similar payment or series of a Lien payments (other than a Permitted Lienpayments constituting base salary or base compensation) on in excess of $100,000 in any material assets or properties given period of the twelve (12) months to any Company or its SubsidiariesAssociate;
(ii) any Company Contract under which the Company relating to employment or its Subsidiaries is lessee of employee benefits, including any stock option plan, stock appreciation right plan, restricted stock or holds stock unit plan, stock purchase plan or operates, in each caseother equity incentive plan, any tangible property of the benefits of which will be triggered or increased, or the vesting of any of the benefits of which will be accelerated, by the consummation of any of the Contemplated Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions (other than real propertyeither alone in connection with a previous or subsequent termination of employment or service in combination therewith), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Company Contract under which relating to the Company development, sale or its Subsidiaries is lessor disposition of any Owned Real Property or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Development Real Property;
(iv) any Company Contract: (A) involving a material joint venture, profit-sharingstrategic alliance, partnership, collaboration, co-promotion, commercialization partnership or research sharing of profits or development Contract, revenue; or similar Contract, in each case, which requires, or would reasonably be expected to require (based on B) for any occurrence, development, activity or event contemplated by capital expenditure over the remaining life of such Contract), aggregate payments to or from the Company or its Subsidiaries Contract in excess of $1,000,000 over 2,500,000 that is not included in the life Company’s capital expenditure budget set forth in Part 2.12(a)-1(iv) of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Disclosure Schedule;
(v) any Company Contract that entered into since January 1, 2010, relating to the acquisition, transfer, sale, development (including joint development) or joint ownership of any material Company IP (other than assignments of Intellectual Property to the Acquired Companies from their employees or contractors on standard forms used by such Acquired Companies);
(vi) any Company Contract entered into at any time since January 1, 2018: (A) limits relating to the disposition or purports acquisition by any Acquired Company of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $10,000,000 individually or $20,000,000 in the aggregate for all such Company Contracts; or (B) pursuant to limitwhich any Acquired Company will acquire any interest, or will make an investment, other than short term investments including but not limited to money market funds, bank deposits, commercial paper and other money market instruments as disclosed in any material respectthe Company Balance Sheet or the notes thereto, or incurred in the freedom ordinary course consistent with past practice since the date of the Company Balance Sheet, for consideration in excess of $10,000,000 in any other Person, other than another Acquired Company;
(vii) any Company Contract relating to the disposition or acquisition by any Acquired Company of any business, product line or other material assets of the Acquired Company or another Entity outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) with continuing material indemnification obligations of any Acquired Company, or any material remaining “earn out” or other contingent payment or consideration of any Acquired Company that has not been substantially satisfied prior to the date of this Agreement;
(viii) any Company Contract containing any “standstill” or similar provisions that limit or restrict; (A) the ability of a Person to acquire any securities or assets of an Acquired Company or (B) the ability of an Acquired Company to acquire any securities or assets of a Person that is not an Acquired Company;
(ix) any Company Contract that by its terms materially limits or restricts the right or ability of any Acquired Company (or, by its terms, following the Closing would limit or restrict Parent or any Subsidiary of Parent (other than those Subsidiaries constituting Acquired Companies)): (A) to engage or compete in any line of business or with compete with, or provide any product or service to, any other Person or in any area geographic area; (B) to acquire any product or that would so limit other asset or purport any service from any Person, sell any product or other asset to limitor perform any service for any other Person, or transact business or deal in any other manner with any other Person; or (C) to develop, sell, supply, distribute, offer, support or service any product or other asset or license any Intellectual Property Right to or for any other Person;
(x) any Company Contract that by its terms: (A) grants exclusive rights to market, sell or deliver any material respect, the operations product or service of Parent or any of its Affiliates after the Closing, Acquired Company; (B) contains any exclusivity, “most favored nation” or similar provisions, obligations provision in favor of the counterparty for a material product or restrictions or service of any Acquired Company; (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license offer or first negotiation or any other similar rights right with respect to a material asset owned by an Acquired Company; or (D) provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or a material Company Product portion of an Acquired Company’s requirements from any third party; or any material Intellectual PropertyCompany Contract that, by its terms, following the Closing would grant, contain or provide, or purport to grant, contain or provide, any of the foregoing rights in respect of Parent or any Subsidiary of Parent (other than those Subsidiaries constituting Acquired Companies);
(xi) any Company Contract that involves or includes, as the case may be: (A) fixed price development work with a completion criteria in excess of $5,000,000 over the remaining life of such Company Contract; or (B) as of September 30, 2020, an anticipated loss for the disposition of any portion of the assets or business remaining life of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries Contract determined in accordance with GAAP in excess of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation$5,000,000;
(xii) any settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) requiring monetary payments by the that materially restricts or imposes any material obligation on any Acquired Company or its Subsidiaries after materially disrupts the business of any of the Acquired Companies as currently conducted; or (B) that would require any of the Acquired Companies to pay consideration valued at more than $5,000,000 in the aggregate following the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and;
(xiii) each collective bargaining agreement any Company Contract (other than a Company Contract under any Company Equity Plan or other Contract with evidencing any Company Equity Award on the form or forms used by the Company or its Subsidiaries, on in the one handordinary course of business and Made Available to Parent, and any labor union, labor organization or works council representing employees of other than the Company Convertible Notes Indenture): (A) relating to the future acquisition, issuance, voting, registration, sale or its Subsidiariestransfer of any security, on the other hand;
than Company Contracts for marketable securities held for investment purposes that represent less than two percent (xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent2%) of the Company or any outstanding capital stock of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothsuch Entity; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lockheed Martin Corp)
Material Contracts. (a) Section 3.13(aSchedule 3.17(a) of the Company Disclosure Schedule contains a listing list of each contract (collectively, together with all Contracts described in clauses (icontracts and other documents listed on the Exhibit Index to the Company's most recent Annual Report on Form 10-K, the "Material Contracts") through (xiii) below to which, as of the date of this Agreement, which the Company or its Subsidiaries any Subsidiary is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):it is bound that:
(i) any Contract relating to Indebtedness for borrowed money contains unfulfilled obligations of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of provide services to customers with aggregate annual revenues to the Company or any of its SubsidiariesSubsidiaries likely to be in excess of $1,000,000 or more and which has a term of more than one (1) year;
(ii) any Contract under which requires an aggregate annual payment by the Company or any of its Subsidiaries is lessee of $1,000,000 or holds more which has a term of more than one (1) year and that cannot be cancelled or operates, in each case, any tangible property (other otherwise terminated on less than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000120 days notice;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, contains covenants limiting the freedom of the Company or of any of its Subsidiaries to engage or compete in any line of business in any geographic area or to compete with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make acquire equity securities of any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andPerson;
(xviiiv) is an employment, severance, retention, consulting, loan or indemnification contract applicable to any other Contract the performance current or former employee of which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess Subsidiaries, including contracts to employ executive officers and other contracts with officers and directors of $300,000 or (B) aggregate payments to or from the Company or any of its Subsidiaries in excess of $1,500,000 over the life of the agreement andSubsidiaries, in each case, other than any such contract that is not terminable by the applicable Company or any of its Subsidiaries before and after the Effective Time on not more than 60 days' notice without penalty or cost to the Company or any Subsidiary;
(v) relates to indebtedness for borrowed money, notes payable, debt securities, letters of credit or surety bonds or guaranties of debt of any third party (other than Subsidiaries of the Company);
(vi) is with any director, officer or Affiliate; or
(vii) is a material joint venture or partnership, merger, asset or stock purchase or divestiture Contract relating to the Company or any of its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeand entered into on or after January 1, 2004.
(b) Except as set forth in Section 3.17(b) and except as would not have a Material Adverse Effect, (i) Each Material Contract is valid and binding on neither the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or nor any of its Subsidiaries is, and, to the Company’s Knowledge's knowledge, the counterparties thereto (subject to applicable bankruptcyno other party is, insolvency, reorganization, moratorium in breach or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violation of, or default under, any Material Contract Contract, (ii) neither the Company nor any of its Subsidiaries has received any written claim of default under any Material Contract, and (iii) to the Company's knowledge, no event has occurred that which would result in a breach or violation of, or a default under, any Material Contract (in each case, with or without due notice or lapse of time or both) ). Except as would result in not have a material breach ofMaterial Adverse Effect, or default under, any each Material Contract by the Company or is valid, binding and enforceable in accordance with its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoterms and is in full force and effect. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, including any schedules and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement and the Company Plans, Section 3.13(a) 3.14 of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete list, as of the date hereof, of this Agreement, each of the Company following types of Contracts to which any of the Companies or its any of their Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any is otherwise bound (all Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the type described below in this Section 3.14(a) being referred to herein as “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating pursuant to Indebtedness for borrowed money which any Company or any of their Subsidiaries paid or received amounts in excess of $100,000 during any one of the Company or its Subsidiaries or last three (3) years prior to the placing date of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesthis Agreement;
(ii) any Contract under which the indemnification, employment, “change of control”, retention, severance, consulting or other contract with any executive officer of any Company or its any of their Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned those contracts terminable by any other Person, except for any lease such Company or agreement under which the aggregate annual rental payments do not exceed $500,000applicable Subsidiary on no more than 30 days notice without liability or financial obligations of such Company or the applicable Subsidiary;
(iii) any Contract under which the Company loan, guarantee of Indebtedness or its Subsidiaries is lessor credit agreement, note, bond, mortgage, indenture or other binding commitment relating to Indebtedness in an amount in excess of or permits any third party to hold or operate$50,000 individually, in each case, any tangible property (other than real property), (A) accounts receivables and payables and (B) loans to or from direct or indirect wholly-owned Subsidiaries of the Sellers or controlled by Affiliates of the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Sellers;
(iv) any (A) joint venturecontract that has a continuing material indemnification obligation to any Person, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)those contracts entered into in the ordinary course of business consistent with past practice;
(v) any Contract entered into after December 31, 2008 that involves acquisitions or dispositions of (A) limits assets or purports to limit, in capital stock or other voting securities or equity interests of any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, their Subsidiaries or (B) contains any exclusivity, “most favored nation” assets or similar provisions, obligations real property or restrictions capital stock or (C) contains any other provisions restricting voting securities or purporting to restrict the ability equity interests of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customeranother Person, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment employment agreements or capital expenditure agreements with independent contractors or consultants (or series of capital expendituressimilar arrangements) by the Company other than those which can be terminated at will, without a penalty, on 90 days’ notice or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementless;
(vii) any Contract requiring the non-competition or other similar agreement that prohibits or otherwise restricts any Company or its any of their Subsidiaries to guarantee from freely engaging in business anywhere in the Liabilities of world (including any Person (other than the agreement that restricts any Company or a Subsidiaryany of their Subsidiaries from competing in any line of business) or pursuant to which for any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities period of a the Company or a Subsidiary, in each case in excess of $200,000time;
(viii) any Contract under which the Company that creates a partnership or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment joint venture with respect to any Person outside portion of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonBusiness;
(ix) any Contract required contract pursuant to be disclosed on Section 3.19 which any Company or any Subsidiary is a lessee of any personal or real property, for which the Company Disclosure Scheduleaggregate annual base rent or lease payments exceed $10,000 respectively;
(x) any Contract contact entered into in the past three (3) years involving any resolution or settlement of any actual or threatened Action with any Person (A) pursuant to a value of greater than $50,000 and which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;imposes continuing obligations; and
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation settlement or similar Contract (A) requiring monetary payments by the Company agreement with any Governmental Authority or its Subsidiaries after the date order or consent of this Agreement, (B) with a Governmental Authority or (C) that imposes involving future performance by any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates Subsidiaries (excluding employee confidentiality and invention assignment agreementsexcluding, equity or incentive equity documentsfor the avoidance of doubt, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentcustomary Permits);.
(xvb) any employmentNone of such Seller, consulting, bonus, commissions the Companies or any of their Subsidiaries has received written notice that it is in material breach of or default under the terms of any Material Contract. To the Knowledge of such Seller, no other compensation party to any Material Contract with an employee is in material breach of or individual consultant or independent contractor, involving aggregate payments default under the terms of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change Material Contract. Except as set forth in control, retention or similar arrangements, that will result in any obligation (absolute or contingentSection 3.14(b) of the Company or any of its Subsidiaries to make any payment or incur any Liability as Disclosure Schedule, each Material Contract is a result valid and binding obligation of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the applicable Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement applicable Subsidiary which is party thereto and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s KnowledgeKnowledge of such Seller, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 1 contract
Samples: Equity Purchase Agreement (Primus Telecommunications Group Inc)
Material Contracts. (a) Section 3.13(aOther than (x) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company 0000 Xxx) filed or incorporated by reference as an exhibit to the SEC Filings, (y) any Excluded Asset, Section 6.5 of the Seller Disclosure Schedule contains a listing sets forth an accurate, correct and complete list of all Contracts related to the Business to which any of the descriptions set forth below may apply:
(i) Person`al Property Leases, any Contract for Leased Real Property, Contracts affecting any Seller Intellectual Property and material Governmental Approvals;
(ii) Any Contract obligating a Seller to sell or deliver any product or service at a price which does not cover the cost (including labor, materials and production overhead (but taking into account vendor funding and/or back end rebates)) plus the customary profit margin associated with such product or service;
(iii) Any Contract relating to any royalty arrangement;
(iv) Any Contract (other than customer purchase orders) with a Business customer generating revenues in excess of $50,000 in the past 12 months; and
(v) Any proposed arrangement of a type that, if entered into, would be a Contract described in clauses any of (i) through (xiiiiv) below to which, as of above.
(b) Sellers have made available in the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). TrueVDR accurate, correct and complete copies of the all Purchased Contracts listed on Section 3.13(a) (or written summaries of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativesmaterial terms thereof, together with if not in writing), including all amendments thereto):amendments, supplements, modifications and waivers thereof.
(ic) any Each Purchased Contract relating to Indebtedness for borrowed money of is currently valid and in full force and effect, and is enforceable by the Company or applicable Seller in accordance with its Subsidiaries or terms.
(d) No Seller nor, to the placing Knowledge of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each caseSellers, any tangible property (other than real property)third party, owned by is in default under any other PersonPurchased Contract, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area or default that would so limit or purport to limitnot have a Material Adverse Effect. To the Knowledge of Sellers, in no breaches of Seller Contracts by any material respectSeller would, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution tohave a Material Adverse Effect. No event has occurred, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s KnowledgeKnowledge of Sellers, the counterparties thereto (subject to applicable bankruptcyno circumstance or condition exists, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that might (with or without due notice or lapse of time or bothtime) would (a) result in a material violation or breach ofof any of the provisions of any Purchased Contract; (b) give any Person the right to declare a default or exercise any remedy under any Purchased Contract; (c) give any Person the right to accelerate the maturity or performance of any Purchased Contract, or default underto cancel, terminate or modify any Purchased Contract; or (d) otherwise have a Material Contract by the Company or its Subsidiaries orAdverse Effect in connection with any Purchased Contract, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts except in effect as any of the date hereof foregoing cases as would not have a Material Adverse Effect. No Seller has waived any of its rights under any Purchased Contract.
(other than purchase orderse) To the Knowledge of Sellers, invoices, each Person against which a Seller has or may acquire any rights under any Purchased Contract is able to satisfy such Person’s material obligations and similar confirmatory liabilities to such Seller.
(f) The performance of the Purchased Contracts will not result in any violation of or administrative documents that are ancillary failure by any Seller to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain comply with any material executory or continuing terms, conditions, obligations or rights)Legal Requirement.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a3.16(a) of the Company Disclosure Schedule, this Agreement and the “Material Contracts”). Trueother Transaction Documents to which the Company is a party and any Company Benefit Plans, correct and complete copies as of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativesdate hereof, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money none of the Company or any of its Subsidiaries is a party to or bound by any:
(A) Contract relating to indebtedness or to the mortgaging, pledging or otherwise placing of a Lien (other than a Permitted Lien) on any material assets or properties portion of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closingtheir assets, (B) contains Contract relating to any exclusivityfactoring, “most favored nation” supplier, trade or similar provisions, obligations or restrictions vendor financing or (C) contains Contract under which it has advanced or loaned any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiaryany of its Subsidiaries) or pursuant to which amounts exceeding, in the aggregate, $5,000,000.00;
(ii) guaranty of any obligation made on behalf of any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities any of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries hasor other guaranty in an amount exceeding, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person5,000,000.00;
(ixiii) any Contract required to be disclosed on Section 3.19 of the Company Disclosure ScheduleMaterial Leases;
(xiv) any Contract settlement, conciliation or similar agreement with any Person (A) Governmental Entity or pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may Subsidiaries will be required to pay milestonesrequired, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, to satisfy any material monetary or non-monetary obligations;
(v) agreement (A) relating to any pending or completed business merger, acquisition or divestiture or similar transaction by the Company or any of its Subsidiaries since January 1, 2022 pursuant to which the Company or any of its Subsidiaries has remaining material obligations or liabilities or (B) giving any Third-Party the right to acquire any Equity Interests, stock, material assets or businesses of the Company or any of its Subsidiaries after the date hereof, in each case, other than agreements with customers and suppliers in the ordinary course and other than Company Awards;
(vi) Contract concerning (A) the formation, creation, operation, management or control of any joint venture, partnership or other similar arrangement with a Governmental Authority Third Party or (B) the ownership of any Equity Interest in any entity or business other than the Subsidiaries of the Company;
(vii) Contract pursuant to which (A) any Third Party grants to the Company or any of its Subsidiaries any license, covenant not to assert, waiver or other right under any Intellectual Property material to the business of the Company and its Subsidiaries, taken as a whole (other than non-exclusive licenses granted for the use of software or information technology services that are generally commercially available on standardized terms), or (B) the Company or any of its Subsidiaries grants to any Third Party any license, covenant not to assert, waiver or other right under any Intellectual Property material to the business of the Company and its Subsidiaries, taken as a whole, other than (x) non-exclusive licenses granted in the ordinary course of business to (1) vendors or service providers, solely for facilitating their provision of services for or on behalf of the Company or its Subsidiaries, (2) customers of the Company or its Subsidiaries, solely for their authorized use of the Company’s or its Subsidiaries’ products and services, or (y) a intercompany license between the Company and any of its Subsidiaries;
(viii) Contract that, with respect to Intellectual Property material to, or reasonably expected to be material to, the business of the Company and its Subsidiaries, taken as a whole, (A) materially limits the freedom or right of the Company or any of its Subsidiaries to exploit such Intellectual Property (including pursuant to any trademark co-existence agreement or similar arrangement), (B) grants to any third party any option to acquire any such Intellectual Property currently constituting Company Intellectual Property, or (C) that imposes any materialgoverns the development of such Intellectual Property (other than employee and independent contractor agreements pursuant to which all right, non-monetary obligations on title and interest in and to such Intellectual Property is presently assigned to the Company or one or more of its Subsidiaries Subsidiaries);
(ix) Contract which (A) expressly limits or Parent prohibits the Company or any of its Affiliates after Subsidiaries (or, following the ClosingEffective Time, Parent or its affiliates (including the Surviving Corporation and its Subsidiaries); and) from competing or freely engaging in any line of business or anywhere in the world in any material respect (other than no solicitation and no hire provisions (that are not material to the Company and its Subsidiaries) in employment or service provider arrangements), or (B) contains any “most favored nation,” exclusivity or similar covenants that would restrict future business activity of Parent or its affiliates (including the Surviving Corporation and its Subsidiaries) following the Effective Time;
(xiiix) each collective bargaining agreement or other Contract with any Governmental Entity involving annual payments in excess of $200,000.00;
(xi) Contract that is between the Company or any of its Subsidiaries, on the one hand, and any labor union, labor organization director or works council representing employees officer of the Company or its Subsidiariesany person beneficially owning 5% or more of the outstanding Shares, on the other handhand (except for any Company Benefit Plan);
(xii) Labor Agreement;
(xiii) Contract with any (A) Significant Customer for the sale of goods or services by the Company or any of its Subsidiaries or (B) Significant Supplier for the purchase of services, materials, supplies or equipment by the Company or any of its Subsidiaries (other than any purchase or sale order entered into in the ordinary course of business);
(xiv) any other Contract with which would reasonably be expected to involve aggregate consideration paid by or to the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or and/or its Subsidiaries or any in excess of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);$25,000,000.00 after the date hereof; or
(xv) any employment, consulting, bonus, commissions or other Contract to which any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries is a party that is required to make any payment or incur any Liability be filed by the Company as a result “material contract” pursuant to Item 601(b)(10) of Regulation S-K of the consummation Securities Act.
(b) The Company has delivered or made available to Parent true, correct and complete copies of all written Contracts or other agreements that are required to be set forth on Section 3.16(a) of the transactions contemplated Company Disclosure Schedule (collectively, the “Company Material Contracts”), together with all material amendments thereto.
(c) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Company and its Subsidiaries have performed all obligations required to be performed by this Agreementit and is not in default under, termination in breach of, nor (as of employment the date hereof) in receipt of any written claim of default or breach under, any Company Material Contract, (ii) no event has occurred which, with the passage of time or the giving of notice or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to , would result in a default or from breach by the Company or any of its Subsidiaries in excess of $300,000 or under any Company Material Contract and (Biii) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life as of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicabledate hereof, to the Knowledge of the Company’s Knowledge, there is no breach or threatened breach by the counterparties theretoother parties to any Company Material Contract. Except as has not had, and is would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and except for those that have terminated or expired in accordance with their terms, all of the Company Material Contracts are valid and in full force and effect and constitute legal, valid and binding obligations of the Company or its Subsidiaries party thereto, and are enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties party thereto in accordance with their respective terms (subject to except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar Laws affecting generally the enforcement of creditors’ rights generally and subject subject, as to enforceability, to general principles of equity), (ii) the Company or its Subsidiaries and, to the Knowledge of the Company’s Knowledge, constitute legal, valid and binding obligations of the counterparties thereto are not other party or parties thereto, enforceable against such party or parties in material breach ofaccordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, or default underinsolvency, any Material Contract fraudulent conveyance, reorganization, moratorium and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach ofother similar Laws affecting creditors’ rights generally and subject, or default under, any Material Contract by the Company or its Subsidiaries oras to enforceability, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies general principles of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightsequity).
Appears in 1 contract
Material Contracts. Schedule 3.11 sets forth a correct and complete list of (aand in the case of oral agreements, description of) Section 3.13(aall Material Contracts (as hereinafter defined) (which, exclusive of the Company Disclosure Schedule contains a listing Benefit Plans (as hereinafter defined), the Surety Bonds (as hereinafter defined), the ChoicePoint Personal Property Leases, and any insurance contracts, are herein referred to as the "Oxxxxx Contracts"). Correct and complete copies of all Oxxxxx Contracts described in clauses have been delivered to LabOne. There are no existing material defaults (i) through (xiii) below to or events which, as with notice or lapse of time or both, would constitute material defaults) of any Oxxxxx Entity under any Oxxxxx Contract, or, to the knowledge of ChoicePoint, of any of the date other parties thereto. None of the ChoicePoint Entities or the Oxxxxx Entities have been notified of any claim that any Oxxxxx Contract is not valid and enforceable in accordance with its terms for the periods stated therein, or that there is under any such contract any existing default or event which, with notice or lapse of time, or both, would constitute a default. For purposes of this AgreementSection 3.11, "Material Contracts" include the Company following contracts, agreements, commitments, arrangements, understandings, or its Subsidiaries other instruments (in each case whether oral or written, but only to the extent legally binding) to which any Oxxxxx Entity is a party or by which they are boundany ChoicePoint Entity has assigned to any Oxxxxx Entity (excluding any insurance contracts):
(a) Indentures, credit agreements, letters of credit, security agreements, pledge agreements, guaranty agreements or other than a Company Benefit Plan, agreements and that are not expired or have not been terminated and not including any Contracts pursuant instruments relating to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) borrowing of the Company Disclosure Schedulemoney, the “Material Contracts”). True, correct and complete copies extension of credit or the Contracts listed on Section 3.13(a) granting of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Liens;
(i) Management, employment, independent contractor, severance and consulting agreements, (ii) all non-compete and confidentiality agreements with employees, independent contractors and other agents of any Contract relating to Indebtedness for borrowed money of the Company Oxxxxx Entities or its Subsidiaries (iii) arrangements or agreements related to the placing temporary services of a Lien (other any kind that require payments greater than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries$25,000 annually;
(iic) any Contract under which the Company Union or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000collective bargaining agreements;
(iiid) any Contract under which the Company or its Subsidiaries is lessor Powers of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000attorney;
(ive) any (A) joint ventureSales agency, profit-sharingmanufacturer's representative, partnership, collaboration, co-promotion, commercialization and distributorship agreements or research other distribution or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)commission arrangements;
(vf) any Contract that Licenses of patents, trademarks, tradenames, logos, service marks, software (A) limits excluding standard "off the shelf" software with annual license payments less than $10,000), copyrights, know-how, and other intellectual property or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingproprietary rights;
(vig) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiaryAgreements, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advanceorders, or assignment commitments for the purchase of payment to services, materials, supplies, or products from any Person outside one supplier or group of the Ordinary Course of Business or, individually or in the aggregate, in related suppliers for an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person25,000;
(ixh) Agreements, orders, or commitments for the sale of products or services for more than $25,000 to any Contract required to be disclosed on Section 3.19 single purchaser or group of the Company Disclosure Schedulerelated purchasers;
(xi) Agreements for capital expenditures in excess of $25,000 for any Contract with any Person (A) pursuant to which the Company single project or its Subsidiaries (or Parent or any series of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyrelated projects;
(xij) any Contract Joint venture agreements or other agreements providing for the disposition sharing of any portion revenues or payment of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationroyalties;
(xiik) Agreements requiring the consent of any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries party thereto to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and;
(xviil) Lease agreements under which any other Contract the performance of Oxxxxx Entity is lessor and lease agreements under which requires either (A) any Oxxxxx Entity is lessee and which have annual lease payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.25,000;
(im) Each Material Contract is valid and binding on Agreements prohibiting, partially restricting, or otherwise limiting the Company ability of any Oxxxxx Entity to compete, solicit customers, or its Subsidiaries, as applicable, otherwise conduct any business anywhere in the world;
(n) Agreements relating to the Company’s Knowledgeacquisition or sale of any company, business, division, or other enterprise, whether in the counterparties theretoform of stock purchase, asset acquisition, or otherwise and whether or not such acquisition or disposition was completed;
(o) Surety bonds outstanding with respect to any Oxxxxx Entity (the "Surety Bonds"); or
(p) Other than as addressed above, other agreements, contracts, and is commitments that involve payments or receipts of more than $25,000 in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofany single year, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (were entered into other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to in the main contractual relationship between the parties to a particular Contract or group ordinary course of Contracts and that, in each case, do not contain business (but excluding any material executory or continuing terms, conditions, obligations or rightsinsurance contracts).
Appears in 1 contract
Material Contracts. (a) Section 3.13(a4.12(a) of the Company AT&T Disclosure Schedule contains Letter sets forth a listing list of all the following Contracts described as of the Execution Date (together with any such Contracts entered into after the date of this Agreement that would meet the criteria set forth in clauses (ithis Section 4.12(a) through (xiii) below to which, if entered into as of the date of this Agreement, the Company or its Subsidiaries is each, a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Transferred Contract relating that contains a put, call or similar right pursuant to Indebtedness for borrowed money of the Company which NewCo or its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person or assets at a purchase price which would reasonably be expected to exceed, or the fair market value of the equity interests or assets of which would be reasonably expected to exceed, $1,000,000, or other Transferred Contract that relates to the placing disposition or acquisition, or merger or business combination, of a Lien (other than a Permitted Lien) on any material equity, assets or properties (whether of the Company Transferred Subsidiaries or its Subsidiariesthe Business, or of another business) valued in excess of $10,000,000;
(ii) each Transferred Contract with (A) the top 25 programming content or product providers (counting providers that are affiliated with each other as a single provider for purposes hereof) of the Business measured by annual expenditure in fiscal year 2020 and (B) any sports league programming agreement not included in the foregoing clause (A);
(iii) each Transferred Contract that is a top 25 retransmission consent agreement measured by annual expenditure in fiscal year 2020 (to the extent not included under Section 4.12(a)(ii)) (provided, that, within 15 Business Days following the Execution Date, AT&T shall use its commercially reasonable efforts to make available to Investor all such Material Contracts to the extent not provided prior to the Execution Date);
(iv) each Transferred Contract that provides for the operation or maintenance of Satellites, or for the lease, sale or purchase of transponders located upon Satellites;
(v) each Transferred Contract under which AT&T, the Company AT&T Entities, NewCo or its the Transferred Subsidiaries (A) grants to any Third Party any license (1) under any material NewCo IPR that is lessee an exclusive license or (2) that involves annual payments to NewCo or the Transferred Subsidiaries of more than $500,000 (other than any indirect dealer or holds retailer Contract authorizing dealers or operatesretailers to use NewCo IPR); or (B) is granted any license under the Intellectual Property Rights of any Third Party that is material to the Business and that involves annual expenditures greater than $1,000,000 (but excluding any Contract for commercially available off-the-shelf software);
(vi) each Transferred Contract with a customer, third party vendor, supplier or distributor, in each case, any tangible property (other than real property)that resulted in annual expenditures by, owned by any other Personor revenues to, except for any lease or agreement under which NewCo and its Subsidiaries in excess of $10,000,000 in the aggregate during fiscal year 2020 and is reasonably expected to result after the Closing in annual rental payments do not exceed expenditures by or revenues to NewCo and its Subsidiaries in excess of $500,00010,000,000 in the aggregate;
(iiivii) any each Transferred Contract under which the Company or its Subsidiaries is lessor of or permits any with a third party with respect to hold or operate, in each case, any tangible property (other than real property), owned or controlled by advertising for the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would Business reasonably be expected to require (based on any occurrence, development, activity or event contemplated result after the Closing in annual expenditures by such Contract), aggregate payments to or from the Company NewCo or its Subsidiaries in excess of $1,000,000 over in the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000aggregate;
(viii) any Intercompany Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed reasonably expected to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates result after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made Closing in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) total annual payments to received or from the Company annual expenditures by NewCo or its Subsidiaries in excess of $300,000 1,000,000 in the aggregate;
(ix) each Transferred Contract concerning the establishment or operation of a partnership, strategic alliance, joint venture, or limited liability company (B) aggregate payments with respect to any Person that is not a wholly-owned Subsidiary of AT&T), or from the Company other similar agreement or its Subsidiaries in excess of $1,500,000 over the life of the agreement andarrangement, in each case, that is not terminable by material to the applicable Business;
(x) each Transferred Contract creating Indebtedness in amounts in excess of $10,000,000 in the Company aggregate or guaranteeing any such obligations;
(xi) each Transferred Contract which (A) imposes a material restriction on the geographies or businesses in which the Business may operate other than non-exclusive license agreements entered into in the ordinary course of business, (B) contains certain exclusivity obligations or similar restrictions binding on the Business or that would be binding on NewCo and its subsidiaries after Closing or (C) pursuant to which the Business provides any material pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers, including agreements containing “most favored nation” provisions;
(xii) each Transferred Contract that is a settlement, conciliation, or similar agreement with any Governmental Entity that imposes any material payment obligations or material restrictions on the Business following the Closing;
(xiii) each Collective Bargaining Agreement or other Transferred Contract with any Union; and
(xiv) each other Transferred Contract involving any Governmental Entity for which the aggregate payments to or from NewCo or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeare reasonably expected to be in excess of $10,000,000 or otherwise involve material obligations of NewCo or its Subsidiaries following the Closing.
(ib) Each As of the Execution Date, except for the Contracts set forth in Section 4.12(a)(iii) (which AT&T will make available to Investor following the Execution Date in accordance with Section 4.12(a)(iii)), AT&T has delivered to, or made available to, Investor correct and complete copies of each written Material Contract Contract, including each amendment thereto as in effect as of the Execution Date (subject to AT&T’s redaction of certain commercially or competitively sensitive information therein). As of the Execution Date, each of the Material Contracts is valid valid, binding and binding enforceable on AT&T, any of the Company AT&T Entities or its any of the Transferred Subsidiaries, as applicablethe case may be, and to the Company’s KnowledgeKnowledge of AT&T, the counterparties 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 and enforceable as would not, individually or in accordance with its terms against the Company or its Subsidiaries andaggregate, reasonably be expected to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach have a Material Adverse Effect. There is no violation of, or default under, any such Material Contract by AT&T, any of the AT&T Entities or any of the Transferred Subsidiaries, as the case may be, and (iii) no event has occurred that (that, with or without due notice or the lapse of time or the giving of notice or both) , would result constitute a default thereunder by AT&T, any of the AT&T Entities or any of the Transferred Subsidiaries, as the case may be, or would permit or cause the termination or modification thereof or acceleration or creation of any right or obligation thereunder, in each case except as would not, individually or in the aggregate, reasonably be expected to have a material breach Material Adverse Effect. As of the Execution Date, to the Knowledge of AT&T, there is no violation of, or default under, any Material Contract by the Company or its Subsidiaries or, any counterparty to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all any Material Contracts in effect as of the date hereof (other than purchase orders, invoicesContract, and similar confirmatory no event has occurred that, with the lapse of time or administrative documents that are ancillary to the main contractual relationship between giving of notice or both, would constitute a default thereunder by the parties to a particular Contract counterparty, or group would permit or cause the termination or modification thereof or acceleration or creation of Contracts and thatany right or obligation thereunder, in each casecase except as would not, do individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As of the Execution Date, AT&T has not contain received notice that any counterparty to a Contract required to be set forth in subsections (a)(ii), (a)(iii) or (a)(vi) above has taken action to, or will take action to (i) cancel or terminate or modify its relationship with the Business in a manner materially adverse to the Business, the Transferred Subsidiaries or (following the Closing) NewCo or its Subsidiaries, its relationship, (ii) materially reduce the amount or value of goods or services that it is willing to purchase from or sell to the Business, the Transferred Subsidiaries or (following the Closing) NewCo or its Subsidiaries, or (iii) materially increase the price of goods or services that it has previously provided to the Business, the Transferred Subsidiaries or (following the Closing) NewCo or its Subsidiaries. As of the Execution Date, AT&T is not involved with respect to the Business in any material executory claim or continuing termsdispute with any counterparty to a Contract required to be set forth in subsections (a)(ii), conditions, obligations (a)(iii) or rights)(a)(vi) above.
Appears in 1 contract
Samples: Agreement of Contribution and Subscription (At&t Inc.)
Material Contracts. (a) Section 3.13(aExcept as set forth on Schedule 3.7(a) of (collectively with the Company Disclosure Schedule contains a listing of all Contracts described in clauses (iMaterial Real Property Leases, the “Material Contracts”) through (xiii) below to whichand except for this Agreement, as of the date of this Agreement, the Company or its Subsidiaries is not a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):any:
(i) any material Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lienpurchase orders in the ordinary course of business) on with any material assets Top Customer, Top Supplier or properties of the Company or its SubsidiariesTop Dealer;
(ii) Contract (other than those listed in clause (i)) that involves the performance of services or delivery of goods or materials by the Company that (A) is reasonably expected to result in revenue to the Company after the date hereof in excess of $500,000 in the 12-month period following the Closing Date (other than open purchase orders made in the ordinary course of business) or (B) has a stated term in excess of 12 months following the Closing Date;
(iii) Contract (other than those listed in clause (i)) that involves the performance of services or delivery of goods or materials to the Company that (A) is reasonably expected to result in expenditures by the Company after the date hereof in excess of $500,000 in the 12-month period following the Closing Date (other than open purchase orders made in the ordinary course of business) or (B) has a stated term in excess of 12 months following the Closing Date;
(iv) Contract with any officer, individual employee or independent contractor on a full time, part time, consulting or other basis providing annual compensation in excess of $200,000, including contracts with respect to employment, severance, separation, change in control, retention or similar arrangements for the provision of services to the Company on a full-time or part-time basis;
(v) Contract relating to Indebtedness or letters of credit or involving any Lien (other than Permitted Liens) on any asset of the Company;
(vi) Contract under which the Company or its Subsidiaries is a lessee of or holds or operates, in each case, operates any tangible property (other than real property), owned by any other Person, except for any lease or agreement Contract under which the aggregate annual rental payments do not exceed $500,000;
(iiivii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, operate any tangible property (other than real property), owned or controlled by the Company or its SubsidiariesCompany, except for any lease or agreement Contract under which the aggregate annual rental payments do not exceed $200,000500,000;
(ivviii) any (A) partnership or joint ventureventure agreement involving a sharing of profits, profit-sharinglosses, partnership, collaboration, co-promotion, commercialization costs or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated liabilities by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) with any other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Person;
(vix) any Contract that relating to Intellectual Property other than non-exclusive commercially available software licenses granted to the Company with aggregate annual fees of less than $100,000;
(Ax) limits or purports to limit, in any material respect, Contract limiting the freedom right of the Company or its Subsidiaries to engage or compete in any line of business or compete with any Person in any line of business or in any area geographic area;
(xi) Contract (A) granting any Person the exclusive rights to license, market, distribute, sell or that would so limit or purport to limit, in deliver any material respect, the operations of Parent or any of its Affiliates after the ClosingCompany product, (B) requiring the Company to exclusively sell, lease or distribute products of any Person, (C) requiring the Company to exclusively source materials or products, (D) that contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (CE) that contains any other provisions restricting minimum purchase or purporting minimum sale obligations equal to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation250,000 per year;
(xii) Contract with any settlement, conciliation or similar Contract (A) requiring monetary payments by labor union to which the Company or its Subsidiaries after the date of this Agreement, (B) with is a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andparty;
(xiii) each collective bargaining agreement or other Contract with that relates to a settlement of any Action under which the Company or its Subsidiaries, on the one hand, and has any labor union, labor organization or works council representing employees continuing liability in excess of the Company or its Subsidiaries, on the other hand$100,000;
(xiv) any Contract with the Company any distributor, sales representative, sales agent, dealer, franchisee or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates agency (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentother than those listed in clause (i));
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;a Governmental Entity; or
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries relates to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to the disposition or from acquisition of material assets or properties by the Company or its Subsidiaries in excess of $300,000 500,000, or (B) aggregate payments any merger or business combination with respect to or from the Company or its Subsidiaries and that, in excess the case of $1,500,000 over the life clauses (A) and (B), under which any of the agreement and, in each case, that parties thereto have remaining financial obligations (other than indemnification obligations for which no claim is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticecurrently outstanding).
(ib) Each Material Contract is a valid and binding on the Company or its Subsidiaries, as applicable, to obligation of the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against and conditions, subject to Laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of Law governing specific performance, injunctive relief and other equitable remedies. To the Knowledge of the Company, neither the Company or its Subsidiaries and, nor any other party to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not such Material Contract is in material breach of, or default underunder such Material Contract, any Material Contract and (iii) no event has occurred that (which, with or without due notice or lapse the passage of time or the giving of notice or both) , would result in constitute a material default or breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 1 contract
Samples: Securities Purchase Agreement (Winnebago Industries Inc)
Material Contracts. (a) Section 3.13(aSet forth on Schedule 4.15(a) is a correct and complete list (containing a brief description of each item on such list) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses following (i) through (xiii) below to which, as of the date of this Agreementcollectively, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including "MATERIAL CONTRACTS") with respect to any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Subsidiaries:
(i1) any Contract relating to Indebtedness for borrowed money agreements with investment bankers, brokers, finders, consultants and advisers engaged by or on behalf of the Company or its Subsidiaries or such Subsidiary with respect to the placing of a Lien (Transactions or other than a Permitted Lien) on any material assets or properties transactions contemplating the recapitalization of the Company or its Subsidiaries;
(ii) any Contract under which such Subsidiary, the Company purchase or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled sale by the Company or its Subsidiaries, except for any lease such Subsidiary of assets not in the ordinary course of business or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated issuance and sale by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess such Subsidiary of $1,000,000 over the life of the Contract any Equity Securities or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom Debt of the Company or its Subsidiaries to engage or compete in any line of business or such Subsidiary, as the case may be;
(2) agreements with any Person shareholder having beneficial ownership of 5.0% or in any area more of the shares of common stock of the Company then issued and outstanding, director or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability officer of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingsuch Subsidiary and all shareholders' agreements and voting trusts;
(vi3) any Contract requiring any future capital commitment agreements that may be cancelled, terminated, amended or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) modified, or pursuant to which payments might be required or acceleration of benefits may be required, in connection with or as the result of the execution and delivery of the Transaction Documents or the conclusion of any Person of the Transactions;
(4) Mortgage Servicing Agreements;
(5) agreements (other than Mortgage Loans) that may require the payment or provision by or to any of the Company and its Subsidiaries of money in an aggregate amount, or a Subsidiary) has guaranteed the Liabilities of a the Company good or a Subsidiaryservices have an aggregate value, in each case in the excess of $200,000;250,000; and
(viii6) any Contract under which the Company or its Subsidiaries has, directly or indirectly, agreements not made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess ordinary course of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required business and which are materially adverse to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for such Subsidiary.
(b) Each agreement referred to in clause (4), (5) and (6) of Section 4.15 has, to the acquisition by knowledge of the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or parties other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicablethe case may be, been duly authorized, executed and delivered by the parties to the Company’s Knowledgesuch agreement, the counterparties thereto, and is in full force and effect and constitutes the legal, valid and binding obligation of the parties to such agreement or their respective successors or assigns, enforceable against them in accordance with the terms of such agreement. There is no liability or obligation of the Company or a Subsidiary with respect to any such agreement that, under the terms of such agreement, is required to be paid or otherwise performed or is required to have been paid or otherwise performed, that has not been paid or otherwise performed in accordance with the applicable agreement. The right, title and interest of the Company or a Subsidiary in, to and under each such agreement is free and clear of all Liens. There exists no default under any such agreement by any party, which default, individually or together with other defaults under the same agreement or other agreements, could have a Material Adverse Effect. The conclusion of any of the Transactions will not (and will not give any person a right to) terminate or modify any rights of, or accelerate or increase any obligation of, the Company or any Subsidiary under any such agreement.
(c) Each Mortgage Servicing Agreement is valid, binding and enforceable in accordance with its terms terms. The Company has serviced all Mortgage Loans in accordance with all applicable Investor requirements, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect. There are no pending or threatened claims by any Investor against the Company relating directly or its Subsidiaries and, indirectly to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium any Mortgage Loan or any Mortgage Servicing Agreement. The Company has no notice of any default by other Laws affecting generally the enforcement parties under any Mortgage Servicing Agreement or Flow Servicing Agreement. No material default of creditors’ rights and subject to general principles of equity), (ii) the Company exists under any Mortgage Servicing Agreement or its Subsidiaries andFlow Servicing Agreement, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or including any default under, any Material Contract and (iii) no event has occurred that (arising with or without due notice or lapse of time time, or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, except to the Company’s Knowledge, the counterparties thereto. The Company has made available extent that such defaults could not reasonably be expected to Parent true and complete copies of all have a Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 1 contract
Material Contracts. (a) Except as set forth in Section 3.13(a3.01(m) of the Company Aztar Disclosure Schedule contains Letter, neither Aztar nor any of its subsidiaries is a listing party to or bound by, as of the date hereof, any of the following (whether or not in writing), collectively with all exhibits and schedules to such Contracts:
(i) any agreement or series of related agreement providing for the acquisition or disposition of securities of any person or any assets, in each case involving more than $1,000,000 individually or in the aggregate, other than in the ordinary course of business consistent with past practice or in connection with the capital expenditure budgets included in Section 4.01(a)(xi) of the Aztar Disclosure Letter;
(ii) any Contract that imposes payment, cancellation penalties or other obligations in connection with the redevelopment or future operation (other than ordinary course hotel operations) of all or any portion of Aztar's property, facility or operations in Las Vegas, Nevada (the "Las Vegas Site");
(iii) any Contract or commitment 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 $1,000,000; and
(iv) any Contract that would be required to be filed as an exhibit to an Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (the Contracts described in clauses (i) through - (xiiiiv), together with all exhibits and schedules to such Contracts, being the "Material Contracts"). A true and complete copy of each Material Contract has previously been delivered or made available to Columbia. Except as individually or in the aggregate has not had and would not reasonably be expected to have a material adverse effect on Aztar, each Contract by which Aztar or its subsidiaries is bound is a valid and binding agreement of Aztar or one of its subsidiaries enforceable against Aztar or one of its subsidiaries, and, to the knowledge of Aztar, the counterparties thereto in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors rights generally and to equitable principles (whether considered in a proceeding at law or in equity). Aztar and its subsidiaries are not (and to the knowledge of Aztar, no counterparty is) below to in breach or violation of or in default in the performance or observance of any term or provision of, and no event has occurred which, as with lapse of the date time or action by a third party or Aztar, would result in a default under, any Contract to which Aztar or any of this Agreement, the Company or its Subsidiaries subsidiaries is a party or by which they are boundany of them is bound or to which any of their property is subject, other than a Company Benefit Planbreaches, violations and that are not expired or defaults which have not been terminated had and would not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orexpected, individually or in the aggregate, in an amount in excess to have a material adverse effect on Aztar. The execution, delivery and performance of $200,000 this Agreement by Aztar do not, and the consummation by Aztar of the Merger and the compliance by Aztar with the provisions of this Agreement will not, constitute or made any capital contribution to, or other investment result in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or notice, lapse of time or both) would result in , a material breach or violation of, or a material default under, or the creation of a Lien on any Material Contract by of the Company assets of Aztar or any of its Subsidiaries or, subsidiaries pursuant to the Company’s Knowledge, Pinnacle Agreement. Aztar has in all material respects complied with its obligations under the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoicesPinnacle Agreement, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Pinnacle Agreement has been terminated in accordance with the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)terms thereof.
Appears in 1 contract
Samples: Merger Agreement (Aztar Corp)
Material Contracts. (a) Subsections (i) through (x) of Section 3.13(a3.16(a) of the Company Disclosure Schedule contains a listing list the following types of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, contracts and that are not expired or have not been terminated and not including any Contracts pursuant agreements to which the Company has with no material outstanding or executory obligations or Liabilities any Company Subsidiary is a party (such Contracts contracts and agreements as are required to be set forth on in Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a3.16(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments theretobeing the “Material Company Contracts”):
(i) all contracts and agreements for the sale of any Contract relating to Indebtedness for borrowed money assets of the Company or its the Company Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties in the ordinary course of the Company or its Subsidiariesbusiness;
(ii) any Contract under each contract and agreement which the Company or its Subsidiaries is lessee likely to involve consideration of or holds or operatesmore than $1,000,000, in each casethe aggregate, any tangible property (other than real property), owned by any other Person, except for any lease over the remaining term of such contract or agreement under which the aggregate annual rental payments do not exceed $500,000agreement;
(iii) any Contract under which the Company all contracts and agreements evidencing outstanding Indebtedness in a principal amount of $1,000,000 or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000more;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization all leases of real property leased for the use or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from benefit of the Company or its Subsidiaries any Company Subsidiary requiring rental payments in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)50,000 per month;
(v) all material contracts and agreements with any Contract that (A) limits or purports Governmental Authority to limit, in any material respect, the freedom of which the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingSubsidiary is a party;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life all contracts with Affiliates of the agreementCompany;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000all contracts for employment;
(viii) any Contract under which all joint venture contracts, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or its Subsidiaries hasany Company Subsidiary with any third party;
(ix) all contracts and agreements relating to the acquisition (by merger, directly purchase of stock or indirectlyassets or otherwise) of any operating business or material assets or the capital stock of any other Person, made other than any such acquisitions in the ordinary course of business or agreed reflected in the capital expenditure budget information provided to make Parent; and
(x) all contracts and agreements for the acquisition, sale, chartering or management of any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orVessel.
(b) Except as would not, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;reasonably be expected to have a Company Material Adverse Effect:
(ixi) any each Material Company Contract required is a legal, valid and binding agreement, subject to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition effect of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person applicable bankruptcy, insolvency (other than acquisitions or dispositions made in the Ordinary Course of Businessincluding, without limitation, all Laws relating to fraudulent transfers), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlementreorganization, conciliation moratorium or similar Contract Laws affecting creditors’ rights generally and subject to the effect of general principles of equity (A) requiring monetary payments by the Company regardless of whether considered in a proceeding at Law or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentin equity);
(xvii) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) none of the Company or any Company Subsidiary has received any claim of its Subsidiaries to make default under any payment or incur any Liability as a result Material Company Contract and none of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the any Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and Subsidiary is in full force and effect and enforceable in accordance with its terms against the Company breach or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violation of, or default under, any Material Contract and Company Contract;
(iii) to the knowledge of the Company, no event has occurred that (with other party is in breach or without due notice or lapse of time or both) would result in a material breach violation of, or default under, any Material Contract by Company Contract; and
(iv) 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 material rights of the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. any Company Subsidiary under any Material Company Contract.
(c) The Company has furnished or made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersCompany Contracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 1 contract
Samples: Business Combination Agreement (Cambridge Capital Acquisition Corp)
Material Contracts. (a) Section 3.13(a) Schedule 3.11 of the Company Seller Disclosure Schedule contains sets forth a listing list of all Contracts described in clauses (i) through (xiiixv) below that are valid and effective as to which, as of the date of this Agreement, the Company or its Subsidiaries is a party Acquired Business or by which they are boundthe Acquired Business, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure SchedulePurchased Assets, is otherwise bound (each, a “Material Contract” and collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating under which there were payments to Indebtedness for borrowed money Seller or the Acquired Companies in excess of $2,500,000 (Two Million Five Hundred Thousand Dollars) during the year ended December 31, 2016, or that is expected to result in the receipt of such amount during the year ending December 31, 2017, and to the extent not covered in the foregoing, each Contract with each of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesTop 10 Customers;
(ii) any Contract under which for expenditures or for the Company purchase of goods or its Subsidiaries services by, or on behalf of, Seller or the Acquired Companies in excess of $2,500,000 (Two Million Five Hundred Thousand Dollars) that is lessee expected to result in the payment of or holds or operatessuch amount during the year ending December 31, 2017, and to the extent not covered in the foregoing, each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which contract with each of the aggregate annual rental payments do not exceed $500,000Top 10 Suppliers;
(iii) any Contract under which relating to any outstanding Indebtedness of the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Acquired Companies;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other material Contract with respect to material any labor union, works council or comparable organization representing Acquired Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Employees;
(v) any Contract that (A) limits or purports to limit, in includes any license of any material respect, the freedom of the Company Intellectual Property Rights to or 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 operations of Parent from Seller or any Acquired Company, other than licenses or agreements for off-the-shelf software or other technology that is readily available or non-exclusive licenses granted by Seller or an Acquired Company in the ordinary course of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingbusiness;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by that expressly restricts the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life ability of the agreementAcquired Business to compete in any line of business with any Person or in any geographic area in any material respect;
(vii) any Contract requiring that, to the Company Knowledge of Seller, provides any customer with pricing, discounts or its Subsidiaries benefits that change based on the pricing, discounts or benefits offered to guarantee other customers or by other suppliers to such customer, including Contracts containing “most favored nation,” “most favored customer” or similar provisions, or other provisions restricting the Liabilities right of the Acquired Business to sell or license products or services in any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000manner;
(viii) any Contract under which that, to the Company Knowledge of Seller, provides for any take or its Subsidiaries has, directly pay or indirectly, made or agreed to make any loan, advancerequirements arrangements, or assignment any agreements committing the Acquired Business to purchase or sell a certain amount of payment to any Person outside of the Ordinary Course of Business or, individually products or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personservices;
(ix) any joint venture or partnership or similar arrangement, other than any such Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulesolely between Seller and its Subsidiaries or among Seller’s Subsidiaries;
(x) any Contract with a Related Party, other than any Person (A) pursuant to which the Company Contract for employment or its Subsidiaries (or Parent employment related benefits or any of its Affiliates after Contract that will be terminated in connection with the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyTransactions;
(xi) any material Contract for the disposition of with any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationGovernmental Entity;
(xii) any settlement, conciliation Real Property Lease;
(xiii) any Contract related to the acquisition by Seller or similar Contract (A) requiring monetary payments by any Acquired Company of a business or the Company equity or its Subsidiaries after any other Person and with respect to which there are any outstanding obligations as of the date of this AgreementAgreement that are material to the Acquired Business, (B) with taken as a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handwhole;
(xiv) any Contract with for the Company or its Subsidiaries, on the one hand, and employment of any officer, directorindividual employee or other person on a full-time, managerpart-time, stockholder, member consulting or other basis providing annual base salary and/or guaranteed bonus in excess of $250,000 (Two Hundred and Fifty Thousand Dollars) which will be an Affiliate obligation of the Company or its Subsidiaries Acquired Companies following the Closing (other than offer letters or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Acquired Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentEmployee Plan);; and
(xv) any employment, consulting, bonus, commissions Contract not covered by clauses (i) through (xiv) above involving a right to receive or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementpayment, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) in each case on an aggregate annual payments to or from the Company or its Subsidiaries basis, in excess of $300,000 or 2,500,000 (BTwo Million Five Hundred Thousand Dollars) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, (on a cash basis) and that is cannot terminable by the applicable the Company or its Subsidiaries be cancelled without penalty upon less than thirty within ninety (3090) days’ prior written notice.
(ib) Each Seller has made available to Purchaser or its Representatives complete and correct copies of each written Material Contract is Contract, including all material amendments, supplements, modifications and waivers thereof. As of the date hereof, each of the Material Contracts constitutes the valid and legally binding on the Company obligation of Seller or its Subsidiariesan Acquired Company, as applicable, and, as of the Closing, will constitute the valid and legally binding obligation of an Acquired Company and, to the Company’s KnowledgeKnowledge of Seller, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to any applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of now or hereafter in effect relating to creditors’ rights and subject generally or to general principles of equityequity and applicable Laws governing specific performance, injunctive relief and other equitable remedies). There is no material breach or material default under any Material Contract either by Seller or the applicable Acquired Company as of the date hereof and, as of the Closing (iifollowing the Reorganization) there will not be any such material breach or material default by the applicable Acquired Company or its Subsidiaries andor, to the Company’s KnowledgeKnowledge of Seller, by any other party thereto which has not been cured in all material respects. To the counterparties thereto are not in material breach ofKnowledge of Seller, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or material default under, by or would accelerate any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as material right under any of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contracts.
Appears in 1 contract
Samples: Purchase Agreement (Nn Inc)
Material Contracts. (a) Section 3.13(a) For all purposes of and under this Agreement, a “Material Contract” shall mean a Contract of the Company Disclosure Schedule contains a listing of all Contracts described in clauses related to the following:
(i) through any “material contract” listed as an exhibit to the Company’s annual report on Form 20-F for the year ending December 31, 2016;
(xiiiii) below to whichany Contract with a natural person either as an employee or an independent contractor (in each case, under which the Company of any of its Subsidiaries has continuing obligations as of the date hereof) that carries an aggregate annual base salary in excess of this Agreement, $50,000 (excluding Contracts for “at-will” relationships or that are terminable by the Company or the applicable Subsidiary at its discretion, by notice of not more than 60 days for a cost of less than $10,000;
(iii) any severance, termination, golden parachute, change-of-control or similar agreement with any current or former director, officer or employee of the Company or any of its Subsidiaries;
(iv) any Contract or plan, including any Share Option Plan, share appreciation rights plan or share purchase plan, or any plan providing similar equity awards, entered into by the Company or any of its Subsidiaries, for which any benefits shall be increased, or for which the vesting of benefits shall be accelerated, by the occurrence of any of the transactions contemplated under this Agreement (either alone or upon the occurrence of additional or subsequent events), or for which the value of any of the benefits of which shall be calculated on the basis of any of the transactions contemplated under this Agreement (either alone or upon the occurrence of additional or subsequent events);
(v) any Contract relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any of the Company’s or any of its Subsidiaries’ share capital or other securities or any options, warrants or other rights to purchase or otherwise acquire any of the Company’s or any of its Subsidiaries’ shares, other securities or options, warrants or other rights therefor, except for those Contracts conforming to the standard Contract under a Company Option Plan;
(vi) any collective bargaining agreement or other Contract with any labor organization, council, union or association;
(vii) any Contract with (A) any Related Party of the Company or any of its Subsidiaries, (B) any current or former officer or director of the Company or any of their immediate family members, any of its Subsidiaries or any Related Party of the Company or any of its Subsidiaries, (C) any “controlling shareholder” of the Company (as defined in the ICL), or (D) any Person with whom it does not deal at arm’s length;
(viii) any customer, client, sales representative, distributor, agent, manufacturer or supply Contract that involves consideration in fiscal year 2016 in excess of $30,000 or that is reasonably likely to involve consideration in fiscal year 2017 or fiscal year 2018 in excess of $30,000;
(ix) any Contract concerning or related to Governmental Grants from the IIA or any other Governmental Authority;
(x) any Contract with a Governmental Authority;
(xi) any Contract to which the Company or any of its Subsidiaries is a party that contains any covenant by the Company or any of its Subsidiaries to not compete or engage in any line of business or to not engage in its business in any geographic location, or other Contract restricting the development, manufacture, marketing or distribution of the products and services of the Company or any of its Subsidiaries (or, after the Merger, of Parent or any of its Affiliates), including any Contract with any Person granting such Person the exclusive right in any territory to sell or distribute any product, or other Contract providing “most favored nations” or other preferential pricing or other terms for products or otherwise having or reasonably expected to have an adverse effect on the right of the Company and the Company’s Subsidiaries to sell, distribute or manufacture any products or Company Intellectual Property Rights or to purchase or otherwise obtain any Software, components, parts or sub-assemblies;
(xii) any Contract (A) relating to the disposition, acquisition or lease (directly or indirectly) by which they are bound, the Company or any of its Subsidiaries of a material amount of assets other than a Company Benefit Planin the ordinary course of business consistent with past practice, and that are not expired or have not been terminated and not including any Contracts (B) pursuant to which the Company or any of its Subsidiaries will acquire or has with no acquired any material outstanding interest in any other Person or executory other business enterprise, or (C) for the acquisition or disposition of any business and such Contract contains any profit sharing arrangements or “earn-out” arrangements, indemnification obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):other contingent payment obligations;
(ixiii) any Contract relating to Indebtedness for borrowed money of (including any so called take-or-pay or keepwell agreements) under which the Company or any of its Subsidiaries has directly or to the placing indirectly guaranteed Indebtedness, liabilities or obligations of a Lien any other Person (in each case other than a Permitted Lien) on any material assets or properties endorsements for the purpose of collection in the Company or its Subsidiariesordinary course of business consistent with past practice);
(iixiv) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any advance, loan, advance, extension of credit or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
Person (ix) any Contract required to be disclosed on Section 3.19 of other than the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (and other than acquisitions or dispositions made extensions of trade credit in the Ordinary Course ordinary course of Business), or under which the Company or its Subsidiaries has any continuing obligation business consistent with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentpast practice);
(xv) any employment, consulting, bonus, commissions Contract providing for indemnification by the Company or any other compensation Contract of its Subsidiaries of any Person or any guarantee, with an employee respect to liabilities relating to any current or individual consultant former business of the Company, any of its Subsidiaries or independent contractor, involving aggregate payments of more than $500,000 per yearany predecessor Person;
(xvi) a standstill or similar Contract;
(xvii) any employment Contract (including a purchase order), involving payment by the Company or consulting any of its Subsidiaries of more than $25,000;
(xviii) any Contract with severance(i) a customer that, change in controlthe twelve months prior to the date of this Agreement, retention was one of the twenty (20) largest sources of revenues for the Company and the Company’s Subsidiaries, based on amounts paid or similar arrangementspayable or (ii) a supplier that, in the twelve months prior to the date of this Agreement, was one of the twenty (20) largest suppliers of products and/or services to the Company and the Company’s Subsidiaries, based on amounts paid or payable;
(xix) any Contract granting any Person a right of first refusal or first negotiation;
(xx) any Contract that will result contains a license in respect of Intellectual Property (except for (A) licenses of commercially available, off-the-shelf, click-wrap or shrink-wrap software and (B) licenses granted by the Company or any of its Subsidiaries in the ordinary course of business);
(xxi) any Contract that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity or any Contract involving a sharing of revenues, profits, losses, costs, or liabilities by the Company or any of its Subsidiaries with any other Person or that pursuant to which the Company has an obligation (absolute contingent or contingentotherwise) to make a material investment in or material extension of credit to any Person or any material Contract involving the sharing of revenues, profits or losses by the Company or any of its Subsidiaries with any unaffiliated third party;
(xxii) any Contract that involves or relates to indebtedness for borrowed money or under which the Company or any of its Subsidiaries has issued any note, bond, debenture or other evidence of Indebtedness to, any Person (other than the Company or any of its Subsidiaries) or any other note, bond, debenture or other evidence of Indebtedness of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) outside the ordinary course of business consistent with past practice;
(xxiii) any Contract with any investment banker, broker, adviser or similar party retained by it in connection with this Agreement and the Transactions;
(xxiv) any Contract relating to make (i) Leased Real Property and (ii) existing Leases granting to any payment Person, other than the Company or incur any Liability as a result of its Subsidiaries, any right to use or occupy, now or in the future, any material portion of the consummation of the transactions contemplated by this Agreement, termination of employment or bothLeased Real Property; and
(xviixxv) any other Contract Contract, or group of related Contracts with a Person (or group of affiliated Persons), the performance termination or breach of which requires either would or would reasonably be expected to have a Company Material Adverse Effect and is not disclosed pursuant to clauses (Ai) annual payments through (xxiii) above.
(b) Section 3.12(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts (other than any Material Contract contemplated by clause (i) of the definition thereof) to or from which the Company or any of its Subsidiaries in excess is, or any of $300,000 their assets or businesses are, bound (and any amendments, supplements and modifications thereto). As of the date hereof, true and complete copies of all Material Contracts have been (i) publicly filed with the SEC or (Bii) aggregate payments made available to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeParent.
(ic) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable(and/or each such Subsidiary of the Company party thereto) and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and effect, enforceable against the Company or each such Subsidiary of the Company party thereto, as the case may be, in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledge, the counterparties thereto except that such enforceability (subject to i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or other Laws affecting generally the enforcement of relating to creditors’ rights generally, and (ii) is subject to general principles of equity), (ii) and neither the Company or nor any of its Subsidiaries andthat is a party thereto, nor, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any such Material Contract Contract, and (iii) no circumstances exist and no event has occurred that (with or without due notice or lapse of time or both) both would or would be reasonably expected to 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 or are reasonably expected to contravene, conflict with, or result in or give the Company or any of its Subsidiaries or any other Person the right to declare a material breach default or exercise any remedy under, or to accelerate the maturity or performance of, or default underto cancel, terminate or modify, any Material Contract. Except as set forth on Section 3.12(c) of the Company Disclosure Letter, there is no Material Contract that is not in written form. None of the Company and the Company’s Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any Material Contract by the Company or applicable Subsidiary which notice has not been rescinded, retracted or otherwise withdrawn. Except as set forth on Section 3.12(c) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries orhas provided any written notice of violation or any written notice of the intention of any party to terminate any Material Contract. None of the execution, delivery, or performance of this Agreement or of any other Ancillary Agreements, nor the consummation of the Merger or the other transactions contemplated hereby and thereby, shall (i) constitute a default under or give rise to rights to any party under any of the Material Contracts or (ii) create obligations of, or alter obligations of, the Company’s Knowledge, any of its Subsidiaries, Parent, Merger Sub or the counterparties thereto. The Surviving Company has made available in addition to Parent true and complete copies those obligations of all Material Contracts the Company or any of its Subsidiaries in effect as on the date of this Agreement. As of the date hereof (other than purchase ordershereof, invoicesthere are no renegotiations of, and similar confirmatory attempts to renegotiate or administrative documents that are ancillary outstanding contractual rights to renegotiate any material amounts paid or payable to the main contractual relationship between the parties to a particular Company or any of its Subsidiaries under any Material Contract or group of Contracts with any Person and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)no such Person has made demand for such renegotiation.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a3.16(a) of the Company Disclosure Schedule contains a listing list of all Contracts described in clauses (i) through (xiii) below to which, as each of the date of this Agreement, following Contracts to which the Company or its Subsidiaries any Acquired Subsidiary is a party or by which they their respective assets or properties are bound, other than bound (each a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Contract relating that the Seller reasonably anticipates may, in accordance with its terms, involve aggregate payments by or to Indebtedness for borrowed money of the Company or its Subsidiaries or to any Acquired Subsidiary of more than $250,000 within the placing 12 month period following the Closing and, in the case of a Lien (other than a Permitted Lien) on any material assets or properties of Contract involving payments by the Company or its Subsidiariesany Acquired Subsidiary, that is not cancelable by the Company or an Acquired Subsidiary without liability on thirty (30) or less days’ notice to the other party thereto;
(ii) any each Contract under which for the lease of personal property by or from the Company or its Subsidiaries is lessee of or holds or operatesany Acquired Subsidiary that the Seller reasonably anticipates may, in each caseaccordance with its terms, any tangible property involve annual payments in excess of $100,000 and not cancelable without liability on thirty (other than real property), owned by any other Person, except for any lease 30) or agreement under which less days’ notice to the aggregate annual rental payments do not exceed $500,000lessor;
(iii) any each Contract under which with independent distributors or sales agents anticipated to involve aggregate payments by or to the Company or its Subsidiaries any Acquired Subsidiary of more than $25,000 within the 12 month period following the Closing and that is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled not cancelable by the Company or its Subsidiaries, except for any lease such Acquired Subsidiary without liability on thirty (30) or agreement under which less days’ notice to the aggregate annual rental payments do not exceed $200,000other party thereto;
(iv) all Contracts providing for benefits under any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Plan;
(v) any Contract that (Aall Contracts for employment required to be listed in Section 3.20(a) limits or purports to limit, in any material respect, the freedom of the Disclosure Schedule;
(vi) all Contracts that limit or purport to limit the ability of Company or its Subsidiaries any Acquired Subsidiary to engage or compete in any line of business or compete with any Person or otherwise conduct its business in any geographic area or that would so limit or purport to limit, in during any material respect, the operations period of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementtime;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000all Contracts evidencing Indebtedness;
(viii) any Contract all Contracts under which any Person has directly or indirectly guaranteed the indebtedness, liabilities or obligations of the Company or its Subsidiaries has, any Acquired Subsidiary or the Company or any Acquired Subsidiary has directly or indirectlyindirectly guaranteed the indebtedness, made liabilities or agreed to make any loan, advance, or assignment obligations of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) all Contracts which are joint venture or partnership agreements or other Contracts involving a sharing of profits, losses or costs with any Contract required to be disclosed on Section 3.19 of the Company Disclosure Scheduleother Person;
(x) any Contract all Contracts relating to product warranties, guaranties and/or other similar undertakings with any Person (A) pursuant respect to which contractual performance extended by the Company or its Subsidiaries (or Parent or any Acquired Subsidiary other than in the ordinary course of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights business consistent with respect to any material Company Product or any material Intellectual Propertypast practice;
(xi) any Contract for all Company IP/IT Agreements which are material to the disposition of any portion of the assets or business of the Company or its Subsidiaries or for and the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationAcquired Subsidiaries;
(xii) all Contracts that contain a right of first refusal to acquire any settlement, conciliation or similar Contract (A) requiring monetary payments by assets of the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent Acquired Subsidiary or any of its Affiliates after the Closing); andShares;
(xiii) each collective bargaining agreement or other Contract with all Contracts that require the Company or its Subsidiaries, on the one hand, any Acquired Subsidiary to buy or sell goods or services with respect to which there are reasonably expected to be material losses or costs and any labor union, labor organization or works council representing employees expenses in excess of the Company or its Subsidiaries, on the other handreasonably expected receipts;
(xiv) any Contract with all Contracts that require the payment of consideration by the Company or any Acquired Subsidiary upon, are terminable upon or prohibit a change of ownership or control of the Company or a Acquired Subsidiary;
(xv) all Contracts between the Company or any Acquired Subsidiary and its Subsidiariesofficers or directors;
(xvi) all Contracts with any Governmental Authority;
(xvii) all Contracts involving the payment by the Company or any Acquired Subsidiary of royalties or other amounts calculated based upon the revenues, income or similar measures of results of the Company or any Acquired Subsidiary or based upon income, revenues, unit sales or similar measures of results related to any product or service of the Company or any Acquired Subsidiary or containing any other form of variable pricing terms depending on future results of the one handCompany or any Acquired Subsidiary or any of its products or services;
(xviii) all Contracts that provide for the Company or any Acquired Subsidiary to be the exclusive or a preferred provider of any product or service to any Person or the exclusive or a preferred recipient of any product or service of any Person during any period of time or that otherwise involves the granting by any Person to the Company or any Acquired Subsidiary of exclusive or preferred rights of any kind;
(xix) all Contracts that provide for any Person to be the exclusive or a preferred provider of any product or service to the Company or any Acquired Subsidiary or the exclusive or a preferred recipient of any product or service of the Company or any Acquired Subsidiary during any period of time or that otherwise involves the granting by the Company or any Acquired Subsidiary to any Person of exclusive or preferred rights of any kind;
(xx) all Contracts with healthcare payor customers (other than Governmental Authorities) that (A) resulted in $100,000 or more of revenue for the Company or an Acquired Subsidiary in the twelve-month period ended September 30, 2003 or (B) the Seller reasonably anticipates will result in $100,000 or more of revenue for the Company or an Acquired Subsidiary within the twelve month period following the Closing;
(xxi) all Contracts with (A) Vendor customers that (I) resulted in $100,000 or more of revenue for the Company or an Acquired Subsidiary in the twelve-month period ended September 30, 2003 or (II) the Seller reasonably anticipates will result in $100,000 or more of revenue for the Company or an Acquired Subsidiary within the twelve month period following the Closing and (B) healthcare provider customers that (I) resulted in $100,000 or more of revenue for the Company or an Acquired Subsidiary in the twelve-month period ended September 30, 2003 or (II) the Seller reasonably anticipates will result in $100,000 or more of revenue for the Company or an Acquired Subsidiary within the twelve month period following the Closing;
(xxii) all Contracts which by their terms bind or will bind any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Acquired Subsidiary;
(xvxxiii) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention all Contracts containing most favored nations provisions or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothprovisions; and
(xviixxiv) all Contracts that were not made in the ordinary course of business and that are reasonably expected to be material to the Company, any other Contract Acquired Subsidiary or their respective businesses. For purposes of this Section 3.16 and Sections 3.18 and 3.19, the performance of which requires either (A) annual payments to term “lease” shall include any and all leases, subleases, sale/leaseback agreements or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticesimilar arrangements.
(b) A true copy (or detailed description if such Material Contract is oral) of each Material Contract has been delivered to the Purchaser. Each Material Contract: (i) Each Material Contract is valid and binding on the Company or its Subsidiariesan Acquired Subsidiary, as applicablethe case may be, and, to the Company’s KnowledgeKnowledge of the Seller, the counterparties other parties thereto, and is in full force and effect; and (ii) upon consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, except to the extent that any consents set forth in Section 3.07 of the Disclosure Schedule are not obtained, shall continue in full force and effect and enforceable in accordance with its terms against without penalty or other adverse consequence. Neither the Company nor any Acquired Subsidiary is in material breach of or its Subsidiaries default under any Material Contract and, to the Company’s KnowledgeKnowledge of the Seller, no other party to any Material Contract is in material breach thereof or default thereunder.
(c) Except as set forth in Section 3.16(c) of the counterparties thereto (subject to applicable bankruptcyDisclosure Schedule, insolvencythere is no contract, reorganization, moratorium agreement or other Laws affecting generally arrangement granting any Person any preferential right to purchase, other than in the enforcement ordinary course of creditors’ rights and subject to general principles business consistent with past practice, any of equity), (ii) the assets of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, any Acquired Subsidiary or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Shares.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) of Neither the Company Disclosure Schedule contains a listing nor any of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating to Indebtedness lease of personal property providing for borrowed money annual rentals of the Company $500,000 or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesmore;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesagreement (other than purchase orders and currently budgeted store openings and store remodelings, in each casecase in the ordinary course of business) for the purchase of materials, any tangible property supplies, goods, services, equipment or other assets providing for either (other than real property), owned A) annual payments by any other Person, except for any lease the Company and its Subsidiaries of $500,000 or agreement under which more or (B) aggregate payments by the aggregate annual rental payments do not exceed Company and its Subsidiaries of $500,0001,000,000 or more;
(iii) any Contract under which sales, distribution or other similar agreement providing for the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled sale by the Company or any of its SubsidiariesSubsidiaries of materials, except supplies, goods, services, equipment or other assets (other than sales of inventory pursuant to purchase orders of third parties in the ordinary course of business) that provides for any lease either (A) annual payments to the Company and its Subsidiaries of $500,000 or agreement under which more or (B) aggregate payments to the aggregate annual rental payments do not exceed Company and the Subsidiaries of $200,0001,000,000 or more;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization joint venture or research other similar agreement or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)arrangement;
(v) any Contract agreement relating to the acquisition or disposition of any business or of any material assets outside of the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise) under which the Company or any Subsidiary has any ongoing material rights or obligations;
(vi) any agreement 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), except any such agreement (A) with an aggregate outstanding principal amount not exceeding $1,000,000 and which may be prepaid on not more than 30 days' notice without the payment of any penalty and (B) entered into subsequent to the date of this Agreement as permitted by Section 6.01;
(vii) any material franchise or similar agreement that is not terminable on 90 days' notice or less;
(viii) any material agency, dealer or sales representative agreement that is not terminable on 90 days' notice or less;
(ix) any agreement that (A) limits or purports to limit, in any material respect, limit 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 which would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) freedom of the Company or any of its Subsidiaries to make after the Effective Time, (B) grants any payment exclusive license or incur supply or distribution agreement or right or other exclusive rights or (C) grants any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment "most favored nation" or both; andsimilar rights;
(xviix) any other Contract the performance of which requires either agreement for material Licensed Intellectual Property Rights;
(Axi) annual payments any agreement that grants material rights to or from materially restricts the rights of the Company or its Subsidiaries in excess the material Owned Intellectual Property Rights (excluding purchase orders entered into in the ordinary course of $300,000 business but including all grants of exclusive licenses);
(xii) any agreement with any director or (B) aggregate payments to or from officer of the Company or any of its Subsidiaries in excess of $1,500,000 over the life or with any "associate" or any member of the agreement and"immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the 1934 Act) of any such director or officer; or
(xiii) any xxxxx xxreement, commitment, arrangement or plan not made in each case, the ordinary course of business that is not terminable by material to the applicable Company and the Subsidiaries, taken as a whole.
(b) Each agreement, contract, plan, lease, arrangement or commitment disclosed in any Schedule to this Agreement or required to be disclosed pursuant to this Section (collectively, the "MATERIAL CONTRACTS") is a valid and binding agreement of the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or one of its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretocase may be, and is in full force and effect effect, and enforceable in accordance with its terms against none of the Company or Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any such agreement, contract, plan, lease, arrangement or commitment, and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event or circumstance has occurred that (that, with or without due notice or lapse of time or both) , would result constitute any event of default thereunder, except for such failure to be in full force and effect and such breaches and defaults which, in the aggregate, would not be reasonably expected to have a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoAdverse Effect. The Company has made available to Parent true True and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orderseach such agreement, invoicescontract, and similar confirmatory plan, lease, arrangement or administrative documents that are ancillary commitment have been made available to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Parent.
Appears in 1 contract
Samples: Merger Agreement (Vans Inc)
Material Contracts. Except for Contracts evidencing Bank Loans made by the Bank in the Ordinary Course of Business, Section 2.16 of Seller Disclosure Schedules lists or describes the following with respect to the Bank and each of its Subsidiaries (each such agreement or document, a “Material Contract”), true, complete and correct copies of each of which have been delivered or made available to Purchaser:
(a) Section 3.13(a) all loan and credit agreements, conditional sales Contracts or other title retention agreements or security agreements relating to money borrowed by it, exclusive of deposit agreements with customers of the Company Disclosure Schedule contains a listing Bank entered into in the Ordinary Course of all Contracts described in clauses (i) through (xiii) below to whichBusiness, as agreements for the purchase of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, federal funds and that are not expired or have not been terminated repurchase agreements and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesFederal Home Loan Bank advances;
(iib) any each Contract under which the Company that involves performance of services or its Subsidiaries is lessee delivery of goods or holds materials by it of an amount or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries value in excess of $1,000,000 over 25,000;
(c) each Contract that was not entered into in the life Ordinary Course of Business and that involves expenditures or receipts by it in excess of $25,000;
(d) each Contract not referred to elsewhere in this Section 2.16 that relates to the future purchase of goods or services that materially exceeds the requirements of its business at current levels or for normal operating purposes;
(e) each lease, rental, license, installment and conditional sale agreement and other Contract affecting the ownership of, leasing of, title to or use of, any personal property (Bexcept personal property leases and installment and conditional sales agreements having aggregate payments of less than $15,000);
(f) each licensing agreement or other Contract with respect to material Company Licensed Intellectual Property (patents, trademarks, copyrights, or other than intellectual property, including agreements with current or former employees, consultants or contractors regarding the appropriation or the nondisclosure of any Non-Scheduled Contracts)of its intellectual property;
(vg) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(h) each joint venture, partnership and other Contract (however named) involving a sharing of profits, losses, costs or liabilities by it with any other Person;
(i) each Contract containing covenants that (A) limits in any way purport to restrict, in any material respect, the business activity of Seller or purports to its Subsidiaries or limit, in any material respect, the freedom ability of the Company Seller or its Subsidiaries subsidiaries to engage or compete in any line of business or to compete with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingPerson;
(vij) each Contract providing for payments to or by any Contract requiring any future capital commitment Person based on sales, purchases or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementprofits, other than direct payments for goods;
(viik) any Contract requiring the Company each employment agreement, consulting agreement, non-competition, severance or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company change in control agreement or a Subsidiary) similar arrangement or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case plan providing for payments in excess of $200,00025,000;
(viiil) any each Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of entered into other than in the Ordinary Course of Business or, individually that contains or in provides for an express undertaking by the aggregate, in an amount Bank to be responsible for consequential damages;
(m) each Contract for capital expenditures in excess of $200,000 or made any capital contribution to, or other investment in, any Person25,000;
(ixn) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestoneseach warranty, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture guaranty or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights undertaking with respect to any material Company Product contractual performance extended by the Bank or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (Subsidiary other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xiio) any settlement, conciliation Contract in which Seller is a party that requires consent or similar Contract (A) requiring monetary payments approval by another Person for Seller to enter into this Agreement or to consummate the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Contemplated Transactions; and
(xiiip) each collective bargaining agreement or other Contract with the Company or its Subsidiariesamendment, on the one hand, supplement and modification in respect of any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeforegoing.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below SM Cayman has made available to whichIdeation, as of prior to the date of this Agreement, true, correct and complete copies of each of the following written Contracts, as amended and supplemented, to which any of the Group Companies is a party: (i) any agreement that would be considered a material contract with respect to any Group Company pursuant to Item 601(b)(10) of Regulation S-K (if such Legal Requirement were applicable to such entities and without reference to “registration statements” or its Subsidiaries “reports” thereunder); (ii) any loan agreement, mortgage, note, installment obligation, indenture or other instrument, agreement or arrangement relating to any outstanding indebtedness in excess of US$250,000; (iii) all VIE Contracts; (iv) all Subway Placement Contracts; (v) all Frame Placement Contracts and Billboard Placement Contracts requiring annual payments in excess of US$1,000,000; and (vi) any agreement (other than a Frame Placement Contract, Billboard Placement Contract, or Subway Placement Contract) requiring annual expenditures in excess of US$1,000,000 or generating annual revenues for any Group Company in excess of US$500,000 (each, a “Material Contract”). A list of each such Material Contract is set forth on Section 7.18(a) of the SM Disclosure Schedule. Except as set forth on Section 7.18(a) of the SM Disclosure Schedule, none of the Group Companies is in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Contract to which it is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent it or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” properties or similar provisions, obligations assets is bound except for violations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or defaults that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ornot, individually or in the aggregate, reasonably be expected to result in an amount in excess a Material Adverse Effect on the Group Companies, taken as a whole. To the Knowledge of $200,000 or made any capital contribution tothe SM Entities, or other investment in, any Person;
(ix) any Contract required to be disclosed except as set forth on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent7.18(a) of the Company SM Disclosure Schedule, no other Person has materially violated or breached, or committed or suffered any of its Subsidiaries to make material default under, any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Contract.
(ib) Each Except as set forth on Section 7.18(b) of the SM Disclosure Schedule, each Material Contract is a legal, valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretoagreement, and is in full force and effect effect, and enforceable (i) none of the Group Companies is in accordance with its terms against the Company breach or its Subsidiaries and, default of any Material Contract to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), which it is a party in any material respect; (ii) the Company or its Subsidiaries and, to the Company’s KnowledgeKnowledge of the SM Entities, the counterparties thereto are not no event has occurred or circumstance has existed that (with or without notice or lapse of time), will or would reasonably be expected to, (A) contravene, conflict with or result in material a violation or breach of, or become a default or event of default under, any provision of any Material Contract; or (B) permit any Group Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify any Material Contract; and (iii) none of the Group Companies has received notice of the pending or threatened cancellation, revocation or termination of any Material Contract to which it is a party. Except as set forth on Section 7.18(b) of the SM Disclosure Schedule, since June 30, 2008, and prior to the date of this Agreement, none of the Group Companies has received any written notice or other written communication regarding any actual or possible material violation or breach of, or material default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 1 contract
Samples: Merger Agreement (Id Arizona Corp.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through Schedule 3 lists each “Company Material Contract” (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulecollectively, the “Company Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries subsidiaries are bound as at the date of this Agreement. The Company has prior to the date of this Agreement made available to the Bidder a true and complete copy of each Company Material Contract (including all amendments, modifications, extensions and renewals thereto and waivers thereunder) or Parent has publicly made available such Company Material Contract in XXXXX. For purposes of this Agreement, each of the following constitutes a Company Material Contract:
(A) each Contract that provides for annual payments or any receipts that are still outstanding in excess of its Affiliates after USD 50,000 or provides for payments or receipts that are still outstanding in the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or aggregate in excess of USD 50,000;
(B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any each Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any that is a settlement, conciliation or similar Contract agreement pursuant to which (A) requiring monetary payments by the Company or its Subsidiaries subsidiaries will be required after the date of this Agreement, Agreement to pay more than USD 50,000 or (B) with a Governmental Authority or that contains material restrictions on such party’s conduct;
(C) each Contract that imposes any material, non-monetary obligations on (A) restricts the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries subsidiaries to compete in any business with any person in any geographical area, (B) requires the Company or any of its subsidiaries to conduct any business on a “most favoured nation” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favour of any third party, except in the case of each of Sub-Clauses (A), (B) and (C) for such restrictions, requirements or provisions that are not material to the Company and its subsidiaries, taken as a whole;
(D) each Contract that by its terms requires the Company or any of its subsidiaries, or any successor to, or acquirer of, the Company or any of its subsidiaries, to make any payment or incur any Liability as a result of the consummation a change of control of the transactions contemplated Company or any of its subsidiaries, whether alone or in combination with any other event that would not itself result in such payment (a “Change of Control Payment”), or gives any Person a right to receive or elect to receive a Change of Control Payment;
(E) each Contract for the acquisition or divestiture of a business (including any Contract containing an option to so acquire or divest) that contains continuing covenants, indemnities or other payment obligations that would reasonably be expected to result in the receipt or making of future payments by this Agreement, termination the Company or any of its subsidiaries or any other;
(F) each Contract for the lease of real property with annual payments by the Company and its subsidiaries or any future indemnification obligations in respect of any real property;
(G) any other Contract 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) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(H) any Contract that is an employment or bothconsulting agreement with any executive officer or other employee of the Company or any Company subsidiary or member of the Company Board earning an annual salary or fee from the Company or any Company subsidiary in excess of USD 50,000; and
(xviiI) any other Contract the performance with any Affiliate, director, executive officer, person holding 5 per cent. of which requires either (A) annual payments to or from more of the Company Shares, or its Subsidiaries in excess to the Knowledge of $300,000 the Company, any Affiliate or immediate family member of any of the foregoing;
(Bii) aggregate payments each Company Material Contract is, with respect to or from the Company or and its Subsidiaries in excess of $1,500,000 over the life of the agreement andsubsidiaries, in each casevalid, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid binding and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganizationfraudulent transfer, reorganisation, moratorium or and other Laws laws affecting generally the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), ); and
(iiiii) neither the Company or nor any of its Subsidiaries andAffiliates (including, for the avoidance of doubt, the Company), nor, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in any other party to a Company Material Contract, has materially breached or violated any material breach provision of, or default undertaken or failed to take any action which, any Material Contract and (iii) no event has occurred that (with or without due notice or notice, lapse of time time, or both) , would result in constitute a material breach ofunder the provisions of such Company Material Contract, or default underand, any Material Contract by since 31 December 2016 to the date of this Agreement, neither the Company nor any of its Affiliates has received written notice that it has materially breached, materially violated or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The defaulted under any Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).Contract;
Appears in 1 contract
