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 9 contracts
Sources: Merger Agreement (Furneaux Carol), Merger Agreement (Lewis & Clark Ventures I, LP), Merger Agreement (Sagrera Ricardo A.)
Material Contracts. (a) Section 3.13(aSchedule 3.12(a) sets forth a true, correct and complete list of the following Contractual Obligations (including every written amendment, modification or supplement to the foregoing or other material amendment, modification or supplement to the foregoing that is binding on the Company or any of its Subsidiaries) to which the Company or any of its Subsidiaries is a party: (i) any Contractual Obligation that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Commission), (ii) Contractual Obligations that collectively represent the top 5 agreements (based on cost) with content licensors for the Company and its Subsidiaries during the Company’s last fiscal year, (iii) Contractual Obligations that collectively represent the top 5 agreements (based on revenue) for distribution services and cooperation agreements of the Company Disclosure Schedule contains and its Subsidiaries during the Company’s last fiscal year, (iv) any Contractual Obligation (other than a listing Contractual Obligation described in one of all Contracts described the other provisions of this Section 3.12(a) without regard to any threshold contained therein) that involves annual expenditures during the Company’s last fiscal year by the Company or any Company Subsidiary in excess of $200,000 and is not otherwise cancelable by the Company or any of its Subsidiaries without any financial or other penalty on 90-days’ or less notice, (v) any Lease for real property or (vi) any other Contractual Obligation that is material to the Company or its Subsidiaries (each Contractual Obligation referenced above in clauses (i) through (xiiivi) below individually, a “Material Contract” and collectively, “Material Contracts”); provided that, with respect to whichCompany Material Contracts described above, as of such list shall identify the date of this Agreementsuch contract and any communications (written or, to the knowledge of the Company, oral) received by the Company or its Subsidiaries is a from any party to such contract or by which they are boundon behalf of any such party that such party intends to cancel, other than a Company Benefit Planterminate, and that are not expired seek re-bidding of or have not been terminated and not including any Contracts pursuant fail to which renew such contract. Except as set forth on Schedule 3.12(a), the Company has with no material outstanding delivered 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”). Truemade available true, correct and complete copies of the Contracts listed on Section 3.13(aall such Contractual Obligations to counsel to Purchaser.
(b) All of the Material Contracts are valid, binding and in full force and effect in all material respects and enforceable by the Company Disclosure Schedule have previously been made available in accordance with their respective terms in all material respects, subject to Parent Equitable Principles. The Company is not in material default or breach under any of its agents Contractual Obligations or representativesorganizational documents and, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money the knowledge of the Company, no other party to any of its Contractual Obligations is in material default or breach thereunder (and no event has occurred which with the passage of time or the giving of notice or both would result in a material default or breach by the Company or its Subsidiaries or or, to the placing of a Lien (other than a Permitted Lien) on any material assets or properties knowledge of the Company or its Subsidiaries;
(ii) Company, by any Contract under which other party thereunder). Except as set forth on Schedule 3.12(b), neither the Company or nor any of 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 a 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 non-competition 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 obligation that materially limits 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 materially limit the Company or any of its Subsidiaries to make from engaging in any payment or incur line of business in 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 noticeterritory.
(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
Sources: Securities Purchase Agreement (Seven Stars Cloud Group, Inc.), Securities Purchase Agreement (Wecast Network, Inc.), Securities Purchase Agreement (Wecast Network, Inc.)
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
Sources: Business Combination Agreement, Business Combination Agreement (Aon PLC), Business Combination Agreement (Willis Towers Watson PLC)
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
Sources: Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.)
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
Sources: 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(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
Sources: Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Focus Media Holding LTD)
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
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp), Transaction Support Agreement (Bonanza Creek 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 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
Sources: Merger Agreement (Emc Corp), Merger Agreement (Data Domain, Inc.), Merger Agreement (Emc 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 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
Sources: Merger Agreement (Hadco Acquisition Corp Ii), Merger Agreement (Continental Circuits Corp), Merger Agreement (Hadco Acquisition Corp Ii)
Material Contracts. (a) Section 3.13(a) Except for the implementation of the Company Disclosure Schedule contains a listing of all Contracts described any Reorganization in clauses substantial conformity with its respective Reorganization Plan: (i) through enter into any Contract, or amend or modify (xiiiincluding by entering into a new Contract with such party or otherwise) below to which, as or waive any of the date material terms 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) Material Contract outside 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;
Ordinary Course; (ii) enter into any Contract, that would, if entered into prior to the date hereof, be a Material Contract under which of the Company or its Subsidiaries is lessee of or holds or operates, type described in each case, any tangible property (other than real propertySections 2.15(a)(iii), owned by any other Person(iv), except for any lease (v), or agreement under which the aggregate annual rental payments do not exceed $500,000;
(vi); (iii) enter into, amend, modify or terminate any Contract under or waive, release or assign any rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would be reasonably likely to (X) adversely affect the Company or and 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;
(ivtaken as a whole) 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, (BY) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict impair the ability of the Company or its Subsidiaries Sellers 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 perform their respective obligations under this Agreement or (BZ) $1,000,000 over prevent or materially delay or impair the life completion of the agreement;
Transactions; (viiiv) enter into any Material Contract requiring with up-front cash payments outside the Company Ordinary Course; or its Subsidiaries to guarantee the Liabilities of (v) extend or terminate any Person Material Contract (other than renewals upon expiration in the Company Ordinary Course or a Subsidiary) termination upon the expiration of the term thereof or pursuant to which any Person (other than by the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryapplicable counterparty); provided, that, in each case this Section 5.2(d) shall not require the Company to seek or obtain Parent’s consent in excess of $200,000;
(viii) any Contract under order to set or change the prices at which the Company sells products or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advanceprovides services, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually enter into 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) amend any Contract for the disposition sale of any portion products or provision 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 services, in each case on commercially reasonable terms and in the Ordinary Course so long as such Contract is not or would not be (if entered into prior to the Agreement) a Material Contract under Section 2.15(a)(v); provided, further, that, for purposes of Businessthis Section 5.2(d), the thresholds in Section 2.15(a)(i) shall be deemed to be $5,000,000 for an individual Contract or under which $10,000,000 in the aggregate for related Contracts in any fiscal year. Enter into any Contract, or amend or modify (including by entering into a new Contract with such party or otherwise) or waive any of the material terms of any Contract involving a license of Intellectual Property that is material to the Company or and its Subsidiaries has any continuing obligation with respect which (i) would restrict the Company’s ability to an “earn-out,” contingent purchase price license 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 use such Intellectual Property or (Cii) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent involves consideration or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract material terms that are not consistent with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees past ordinary course commercial practices of the Company or and 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 3 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement, Share Purchase Agreement (Nvidia Corp)
Material Contracts. (a) Section 3.13(a) of Except for this Agreement, the Company Disclosure Schedule contains a listing Benefit Plans, the OpCo Spin-Off Agreements and agreements filed as exhibits to the Company SEC Documents (including, for the avoidance of all Contracts described in clauses (i) through (xiii) below doubt, those that are filed with the SEC at any time prior to whichthe date hereof and incorporated by reference thereto), as of the date of this Agreement, neither the Company or nor any of its Subsidiaries is a party to or bound by which they are bound(for avoidance of doubt, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant each of clauses (i) through (xii) below being subject 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) first sentence of the Company Disclosure Schedule, preamble to this Article III and shall only apply to the “Material Contracts”). True, correct and complete copies of the Contracts listed extent any Contract or arrangement referred to in clauses (i) through (xii) would be binding on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent PropCo or its agents or representatives, together with all amendments theretoSubsidiaries at the Effective Time):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any material Contract relating that will be binding on PropCo or any of its Subsidiaries as of the Effective Time;
(iii) any Contract that involved individual or aggregate payments or consideration of more than $500,000 in the twelve-month period ended June 30, 2015, or is expected to Indebtedness involve individual or aggregate payments or consideration of more than $500,000 in the twelve-month period beginning June 30, 2015 (it being understood that the Company is not making any representation or warranty as to the actual amount of future payments that will be received under any such Contract), for borrowed money of goods and services furnished by or to 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;
(iiiv) any Company Real Property Leases having a remaining term of more than twelve (12) months and involving a payment of more than $100,000 annually;
(v) 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 ClosingSubsidiaries has continuing material indemnification, (B) contains any exclusivity, “most favored nation” earnout or similar provisionsobligations to any third person, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict than those entered into in the ability ordinary course 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 consistent with past practice;
(vi) any Contract requiring any future for capital commitment or capital expenditure (or series expenditures involving payments of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) more than $1,000,000 over individually or in the life aggregate, by or on behalf of the agreementPropCo or any of its Subsidiaries;
(vii) any Contract requiring the Company involving a joint venture or its Subsidiaries to guarantee the Liabilities strategic alliance or partnership agreement or other sharing of profits or losses 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 $200,000person;
(viii) any Contract relating to indebtedness under which the principal amount outstanding thereunder payable by 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 is greater than $200,000 or made any capital contribution to, or other investment in, any Person1,000,000;
(ix) any Contract required to be disclosed on Section 3.19 of containing covenants by the Company Disclosure Scheduleor any of its Affiliates not to (A) compete with any person or (B) engage in any line of business or activity in any geographic location, in each case that would be material to the Company;
(x) any Contract with any Person (A) pursuant to which the Company evidencing an outstanding loan, advance 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 investment 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 or in any payment or incur person (other than any Liability as a result other Subsidiary of the consummation Company) of more than $10,000,000 in the transactions contemplated by this Agreementaggregate (excluding trade receivables and advances to employees for normally incurred business expenses, termination each arising in the ordinary course of employment business consistent with past practice);
(xi) any Order or bothsettlement or conciliation agreement with any Governmental Entity; and
(xviixii) any other Contract involving the performance sale, transfer or acquisition of which requires either (A) annual payments to or from any business entered into by the Company or its Subsidiaries any Subsidiary of the Company in excess the three (3) years preceding the date of $300,000 this Agreement. All contracts of the types referred to in clauses (i) through (xii) above are referred to herein as a “Company Material Contract.”
(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (Bi) aggregate payments neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or from default under the terms of any Company Material Contract and (ii) each Company Material Contract is a valid and binding obligation of the Company or its Subsidiaries in excess of $1,500,000 over the life Subsidiary of the agreement and, in each caseCompany, 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 applicableparty thereto and, to the knowledge of the Company’s Knowledge, 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, 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)Remedies Exceptions.
Appears in 3 contracts
Sources: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Pinnacle Entertainment Inc.), Merger Agreement (Gaming & Leisure Properties, Inc.)
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
Sources: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Ali YK Investment Holding LTD), Merger Agreement (Youku Tudou Inc.)
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
Sources: 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) Section 3.13(a3.7(a) of the Company Disclosure Schedule contains Schedules sets forth a listing of all Contracts described in clauses (i) through (xiii) below to which, as list of the date of this Agreement, the following Contracts to which a 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 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 hereof that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the date hereof, 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 or to the placing of a Lien (other than a any Permitted Lien) on any material assets or properties of the Company or its Subsidiariesany Group Company;
(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 Person, 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 Subsidiariessuch Group Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000100,000;
(iv) any (A) material joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization commercialization, research and development or research or development Contractother similar Contract (including any such Contract that governs the research, development, ownership, enforcement, use, or similar Contractother exploitation of any Intellectual Property Rights or other assets, in each case, case which requires, or would reasonably be expected 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 of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled ContractsBusiness);
(v) 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 area, to operate any asset or assets or that would so limit or purport to limit, in any material respect, the operations of Parent Holdco 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 any Group Company or 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, customer in any material respect or that would so limit or purports to limit, in any material respect, Parent Holdco 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 any Group Company or its Subsidiaries in an amount in excess of (A) $300,000 200,000 annually or (B) $1,000,000 500,000 over the life of the agreementContract;
(vii) any Contract requiring the any Group Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiaryany 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 SubsidiaryGroup Company, in each case in excess of $200,000250,000;
(viii) 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 PersonPerson other than a Group Company;
(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 any Group 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 any 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 PropertyProperty Rights;
(x) any Contract governing the terms of, or otherwise related to, the employment, engagement or services of any current director, manager, officer, employee, or Contingent Worker of a Group Company (A) whose annual base salary (or, in the case of a Contingent Worker, actual or anticipated annual base compensation) is in excess of $150,000 or (B) that provides for severance or any other post-termination payments or benefits;
(xi) any Contract providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xii) any collective bargaining agreements and any other agreements executed with a union, works council or similar organization or a Government Entity regarding the terms and conditions of employment of any employee or Contingent Worker of any Group Company;
(xiii) any Contract with any Top Customer or Top Supplier;
(xiv) any Contract that provides another Person (other than another Group Company or any manager, director or officer of any Group Company) with a power of attorney;
(xv) any Contract that relates to any merger, consolidation or other business combination with any other Person or 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 any material assets or material business of any other Person (other than acquisitions or dispositions made in the Ordinary Course ordinary course of Businessbusiness), 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;
(xiixvi) any settlement, conciliation or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by in excess of $100,000 in the Company or its Subsidiaries after the date of this Agreementaggregate, (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 (or Parent Holdco or any of its Affiliates after the Closing);
(xvii) documents that will be required to be filed with the Registration Statement/Proxy Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; 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
(xviixviii) 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 $300,000 200,000 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 Contract and, in each case, that is not terminable by the applicable the Group Company or its Subsidiaries without penalty upon less than thirty (30) 90 days’ prior written notice.
(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 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 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 Contract. No written notice of termination has been received by the Company with respect to any Material Contract, and (iii) no event has occurred that (with or without due notice or lapse to the knowledge of time or both) would result in a material breach ofthe Company, or default under, none of the other parties 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 indicated to a particular Group Company that it intends to terminate the Material Contract or group of Contracts and that, in each case, do not contain any material executory to terminate or continuing terms, conditions, obligations or rights)reduce its business dealings with a Group Company.
Appears in 3 contracts
Sources: Business Combination Agreement (VivoPower International PLC), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD)
Material Contracts. (a) Section 3.13(a3.17(a) of the Company Disclosure Schedule contains sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue, complete and correct list, as of the date of this Agreement, of each of the following Contracts to which any 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 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 Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien all Contracts (other than a Permitted LienLeases listed in Section 3.14(b) on any material assets or properties of the Disclosure Schedule) involving total annual payments by any Company party thereto of more than $2,000,000 within the 12-month period prior to the last day of the most recent completed quarterly period, except in each case for those Contracts that are cancelable by a Company without penalty or its Subsidiariesfurther payment and for those Contracts that are cancelable by a Company with notice of 90 days or less;
(ii) any Contract under which the Company all employment Contracts with employees whose current annual salary is in excess of $100,000 and Contracts with independent contractors or its Subsidiaries consultants (or similar arrangements) whose current annualized consulting fee is lessee in excess of or holds or operates$100,000, except in each case, any tangible property (other than real property), owned case for those Contracts that are cancelable by any other Person, except for any lease a Company without penalty or agreement under which the aggregate annual rental payments do not exceed $500,000further payment with notice of 60 days or less;
(iii) any Contract all Contracts relating to or guaranteeing Indebtedness for borrowed money, or under which the Company any note, bond indenture, mortgage, security interest or its Subsidiaries is lessor other evidence of or permits any third party to hold or operateIndebtedness has been issued, 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 case having an outstanding principal amount in excess of $200,0002,000,000;
(iv) all Contracts that limit or purport to limit the ability of 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 Company 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 geographic area or that would so limit during any period of time or purport to limitcontain a “most favored nations” provision, in any such case to the extent that such limitation or provision is material respect, to 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 business of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit Companies;
(v) all Contracts with any potential employee or customer, Governmental Authority involving total annual payments in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any excess of its Affiliates after the Closing$2,000,000;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) the top 20 Contracts with Third-Party Payors entered into by the Company or its Subsidiaries Companies based on the amount of revenue to the Companies in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementcalendar year 2005;
(vii) any Contract requiring the Company or its Subsidiaries top 20 Contracts with submitters of medical and dental-claims transactions entered into by the Companies based on the aggregate number of medical and dental-claims transactions submitted 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 $200,000Companies during calendar year 2005;
(viii) any Contract under which entered into prior to the Company or its Subsidiaries has, directly or indirectly, made or agreed date of this Agreement with respect to make any loan, advance, or assignment the acquisition of payment to any Person outside providing for an earnout obligation of a Company contingent or otherwise, which obligation continues in any respect after 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 Persondate hereof;
(ix) any Contract required not described in Section 3.17(a)(viii) which was entered into in the three year period prior to be disclosed on Section 3.19 the date of this Agreement with respect to the Company Disclosure Schedule;acquisition of any Person providing for indemnification or other obligation of a Company, contingent or otherwise, which obligation continues in any respect after the date hereof; and
(x) any Contract with any Person all joint venture agreements or partnership agreements (A) pursuant to which other than contracts entered into in 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 ordinary course 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 rightsCompanies).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Emdeon Corp), Merger Agreement (Emdeon Corp), Agreement and Plan of Merger (Emdeon Inc.)
Material Contracts. (a) Section 3.13(a) Except for this Agreement or as filed or publicly furnished with the SEC prior to the date hereof, none of the Company Disclosure Schedule contains or any Company Subsidiary is a listing of all Contracts described in clauses (i) through (xiii) below party to whichor is bound by, as of the date hereof, any written contract or other agreement which is a “material contract” (as such term is defined in Item 601(b)(10) of this Agreement, Regulation S-K under the Securities Act) to the Company or its Subsidiaries (each contract that is described in this Section 5.10(a) being 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):.
(ib) 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 orExcept as, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution tohas not had and would not reasonably be expected to have a 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 each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable(and/or each such Company Subsidiary party thereto) and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and (ii) each Company Material Contract is in full force and effect and (except for expiration thereof in the ordinary course in accordance with the terms thereof), enforceable against the Company or each such Company Subsidiary party thereto, as the case may be, in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledgeexcept, the counterparties thereto (subject to applicable in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), equity and (iiiii) neither the Company or its nor any of the Company 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 Company Material Contract and (iii) Contract, and, to the Knowledge of the Company, 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 its Subsidiaries any of the Company Subsidiaries, or, to the Knowledge of the Company’s Knowledge, the counterparties any other party thereto, or permit termination, material modification or acceleration by any third party thereunder. 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, invoices, and similar confirmatory neither the Company nor any of the Company Subsidiaries has received any written notice of termination or administrative documents that are ancillary to the main contractual relationship between the parties to a particular cancelation under any Company Material Contract or group received any written notice of Contracts and breach of or any default under any Company Material Contract which breach has not been cured, except for any termination, breach or default that, individually or in each casethe aggregate, do has 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 3 contracts
Sources: Agreement and Plan of Reorganization (Brookfield Renewable Partners L.P.), Agreement and Plan of Reorganization (TerraForm Power, Inc.), Agreement and Plan of Reorganization (TerraForm Power, Inc.)
Material Contracts. Except for the Organization Documents of the Loan Parties and the other agreements set forth on Schedule 6.22 as of the Closing Date there are no (a) Section 3.13(a) employment agreements covering the management of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Borrower or any Subsidiary, (ib) through (xiii) below to which, as collective bargaining agreements or other labor agreements covering any employees of the date of this AgreementBorrower or any Subsidiary, (c) agreements for managerial, consulting or similar services to which the Company Borrower or its Subsidiaries any Subsidiary is a party or by which they are it is bound, (d) agreements regarding the Borrower or any Subsidiary, 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, licenses of IP Rights or other than a Company Benefit Plan, and that are not expired lease or have not been terminated and not including any Contracts pursuant license agreements to which the Company has with no material outstanding Borrower or executory obligations any Subsidiary is a party, either as lessor or Liabilities (such Contracts lessee, or 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 licensor 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 licensee (other than a Permitted Lienlicenses arising from the purchase of “off the shelf” products), (f) on any material assets customer or properties of the Company or its Subsidiaries;
(ii) any Contract under supply agreements to which the Company Borrower or its Subsidiaries any Subsidiary is lessee of or holds or operatesa party, in each case, any tangible property case with respect to the preceding clauses (other than real propertya), owned by any other Person(c), except for any (d), (e) and (f) solely to the extent the breach, default or the termination of such agreement, 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 license could reasonably be expected to require (based result in a material adverse effect 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 Product Development and Commercialization Activities or (Bg) any other Contract agreements or instruments to which the Borrower or any Subsidiary is a party, and the breach, nonperformance or cancellation of which, or the failure of which to renew, could reasonably be expected to have a Material Adverse Effect. Schedule 6.22 sets forth, 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 real estate lease agreement to which the Company or its Subsidiaries (or Parent Borrower or any of its Affiliates after the Closing) Subsidiary 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 a party as of the assets or business Closing Date, the address of the Company or its Subsidiaries or for subject property and the acquisition by the Company or its Subsidiaries annual rental (or, where applicable, a general description of the assets or business method of any other Person (other than acquisitions or dispositions made in computing the Ordinary Course of Businessannual rental), 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 . The consummation of the transactions contemplated by this Agreement, the Loan 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 party 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) any 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 (a) is in full force and effect and is binding upon and enforceable against the Borrower and its Subsidiaries party thereto and, to the knowledge of any Loan Party, all other parties thereto in accordance with its terms against terms, and (b) is not currently subject to any material breach or default by the Company Borrower or any Subsidiary or, to the knowledge of any Loan Party, any other party thereto. None of the Borrower nor any of its Subsidiaries has taken or failed to take any action that would permit any other Person party to any Material Contract to have, and, to the Company’s Knowledgeknowledge of any Loan Party, 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 underno such Person otherwise has, any Material Contract defenses, counterclaims or rights of setoff thereunder (1) as of the Closing Date and (iii2) no event has occurred after the Closing Date that (with or without due notice or lapse of time or both) would could reasonably be expected to result in a material breach ofadverse effect on any Product Development and Commercialization Activities. As of the Closing Date, or default under, any Material Contract by none of 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 are non-assignable by their terms (other than purchase ordersthose certain agreements separately noted in Schedule 6.22 as being non-assignable) or as a matter of law, invoices, and similar confirmatory or administrative documents that are ancillary to prevent the main contractual relationship between the parties to granting of 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)security interest therein.
Appears in 3 contracts
Sources: Credit Agreement (Biocryst Pharmaceuticals Inc), Credit Agreement (Biocryst Pharmaceuticals Inc), Credit Agreement (Cti Biopharma Corp)
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
Sources: Merger Agreement (Gilead Sciences Inc), Merger Agreement (Nexstar Pharmaceuticals Inc), Merger Agreement (Warburg Pincus Investors Lp)
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
Sources: Stock Purchase Agreement (Universal Outdoor Inc), Stock Purchase Agreement (Universal Outdoor Holdings Inc), Stock Purchase Agreement (Universal Outdoor Inc)
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
Sources: Master Sale and Purchase Agreement (General Motors Corp), Master Sale and Purchase Agreement (General Motors Corp)
Material Contracts. (a) Section 3.13(a3.10 (a) of the Company Disclosure Schedule contains a listing Schedules lists each of the following Contracts of the Seller and each of its Subsidiaries (such Contracts, together with all Contracts described concerning the occupancy, management or operation of any Real Property listed or otherwise disclosed 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(a3.10(a) of the Company 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 Contract relating to Indebtedness for borrowed money each agreement of the Company Seller or any of its Subsidiaries involving aggregate consideration in excess of $2,500 or requiring performance by any party more than one year from the date hereof, which, in the latter case, cannot be cancelled by the Seller or its Subsidiaries 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 each agreement that relates to employment, compensation, severance or consulting between 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 Seller or any of its Affiliates after Subsidiaries on the Closingone hand and a current or former (to the extent that any obligations remain outstanding) officer, (B) contains any exclusivitydirector, “most favored nation” manager, employee, Affiliate or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability independent contractor 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 Seller 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;
(xivi) all agreements that relate to the sale of any Contract with of the Company Seller’s or any of its Subsidiaries’ assets, other than in the ordinary course of business, for consideration in excess of $2,500;
(ii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $2,500;
(iii) all agreements relating to Indebtedness of the Seller or its Subsidiaries, ;
(iv) all agreements between or among the Seller or any of its Subsidiaries on the one hand, hand and any officer, director, manager, stockholder, member of an Affiliate of thereof (other than the Company Seller or its Subsidiaries Subsidiaries) on the other hand;
(v) any agreement (A) granting to the Seller or any of their respective Affiliates its Subsidiaries any right to use, exploit or practice any third party Intellectual Property necessary for or otherwise material to the Business (excluding employee confidentiality other than any license for “shrink-wrap,” “click-through” or other “off-the-shelf” software or for other software that is commercially available to the public generally with annual license, maintenance, support 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 fees of more less than $500,000 per year;
5,000), or (xviB) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of constituting a grant by the Company Seller or any of its Subsidiaries to make any payment third party of any right to use, exploit or incur practice any Liability as a result Intellectual Property;
(vi) all agreements that relate to the ownership of equity securities of any business or enterprise, including equity securities in joint ventures and minority equity investments;
(vii) all franchise, development, royalty, management or other similar agreements;
(viii) all agreements, contracts or understandings containing covenants that in any way purport to restrict the business activity of the consummation of the transactions contemplated by this Agreement, termination of employment Seller or bothits Subsidiaries; and
(xviiix) all collective bargaining agreements or agreements with any other Contract labor organization, union or association to which the performance Seller or any 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 noticea party.
(ib) Each Material Contract is valid and binding on the Company or Seller and its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, in accordance with its terms 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 except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles equitable principles). None of equity), (ii) the Company Seller or its Subsidiaries andor, to the CompanySeller’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) no Contract. 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)Buyer.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (CLS Holdings USA, Inc.)
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
Sources: Stock Purchase Agreement, Stock Purchase Agreement (API Technologies Corp.)
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
Sources: Commitment Agreement (Cooper-Standard Holdings Inc.), Commitment Agreement
Material Contracts. (a) Section 3.13(a) of Except as set forth in the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below SEC Reports filed prior to which, as of the date of this AgreementAgreement or Schedule 3.17, neither the Company or 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 to Indebtedness for borrowed money "material contract" (as 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 SubsidiariesSEC);
(ii) any Contract under which contract or agreement for the purchase of materials or personal property from any supplier or for the furnishing of services to the Company or any of 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 that individually involves future aggregate annual rental payments do not exceed by the Company or any of its Subsidiaries of $500,000500,000 or more;
(iii) any Contract under which contract or agreement for the Company sale, license or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property lease (other than real property), owned or controlled as lessor) by the Company or any of its Subsidiaries of services, materials, products, supplies or other assets, owned or leased by the Company or any of its Subsidiaries, except for any lease or agreement under which the that individually involves future aggregate annual rental payments do not exceed to the Company or any of its Subsidiaries of $200,000500,000 or more;
(iv) any (A) joint venturecontract, profit-sharing, partnership, collaboration, co-promotion, commercialization agreement 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 instrument relating 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 evidencing indebtedness 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) borrowed money of the Company or any of its Subsidiaries to make any payment in the amount of $250,000 or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andmore;
(xviiv) any non-competition agreement or any other Contract agreement or obligation which purports to limit in any material respect the performance manner in which, or the localities in which, the business of which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess may be conducted;
(vi) any voting or other agreement governing how any shares of $300,000 Common Stock shall be voted; or
(vii) any contract, agreement or (B) aggregate payments arrangement to allocate, share or from otherwise indemnify for Taxes. The foregoing contracts and agreements to which 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 a party or are bound are collectively referred to herein as "Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Contracts."
(ib) Each Except as set forth on Schedule 3.17(b), each Company Material Contract is valid and binding on the Company or any of its Subsidiaries, as applicable, to Subsidiaries of the Company’s Knowledge, the counterparties thereto, Company and is in full force and effect effect, and enforceable in accordance with its terms against the Company or any of its Subsidiaries andof the Company, as applicable, has performed all obligations required to be performed by it to date under each Company Material Contract, except where such noncompliance or nonperformance, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. The Company does not know, nor has given or received notice of, any violation 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 breach of, such a violation or default under) any Company Material Contract, any except where such violations or defaults, individually or in the aggregate, have not had and would not reasonably be expected to have 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
Sources: Merger Agreement (D&b Acquisition Sub Inc), Merger Agreement (Dave & Busters 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
Sources: Merger Agreement (PCF 1, LLC), Merger Agreement (Neulion, 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 Section 3.13(a3.16(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 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 for borrowed money 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 Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryits Subsidiaries), 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 aggregateforegoing clauses (A) and (B), in an amount in excess of $200,000 100,000, and in case of the foregoing clause (C), in an amount in excess of $50,000;
(ii) guaranty of any financial obligation made on behalf of any Person other than the Company or made any capital contribution toof its Subsidiaries or other guaranty, in each case, in an amount in excess of $100,000;
(iii) Contract with respect to any interest rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries);
(iv) Contract involving any resolution or settlement of any actual or threatened Proceeding against the Company or any of its Subsidiaries involving (A) a payment in excess of $500,000 which was not covered by insurance and entered into within the last three (3) years or (B) any material ongoing requirements or restrictions on the Company or any of its Subsidiaries;
(v) Leased Real Property Leases and Landlord Leases;
(vi) lease or agreement under which the Company or any of its Subsidiaries is lessee or lessor of, or holds or operates any material personal property owned by any other investment inparty, or permits any PersonThird Party to hold or operate any material personal property owned or controlled by the Company or any of its Subsidiaries, in each case for which the annual rental exceeds $150,000;
(vii) agreements (A) relating to any pending or completed material business combination, merger, acquisition or divestiture or similar transaction by the Company or any of its Subsidiaries within the last three (3) years, (B) pursuant to which any of the Company or any of its Subsidiaries has remaining material obligations or liabilities relating to any completed material business combination, merger, acquisition or divestiture or similar transaction, or (C) giving any person the right to acquire any material equity interests, stock, assets or businesses of the Company or any of its Subsidiaries after the date hereof;
(viii) Contract concerning (A) the formation, creation, operation, management or control of any joint venture, partnership or similar agreement or other similar arrangement with a Third Party or (B) the ownership of any equity interest in any entity or business other than the Subsidiaries of the Company, in each case that is material to the business of the Company and its Subsidiaries, taken as a whole;
(ix) Contract pursuant to which (A) the Company or any Contract required of its Subsidiaries are licensed or otherwise permitted by a Third Party to be disclosed on Section 3.19 use any Intellectual Property material to the business of the Company Disclosure Scheduleand its Subsidiaries, taken as a whole (other than non-exclusive licenses of “shrink-wrap”, “click-wrap” and “off-the-shelf” software, and non-exclusive licenses of other software that is generally commercially available with one-time or aggregate annual license, maintenance, support and other fees of $100,000 or less per vendor) or (B) any Third Party is licensed or otherwise permitted to use any material Company Intellectual Property;
(x) any Contract with any Person which (A) pursuant to which expressly limits or prohibits the Company or any of its Subsidiaries from competing or freely engaging in business anywhere in the world, (B) purports to restrict the ability of Parent or its Subsidiaries (or Parent or including the Surviving Corporation and its Subsidiaries) following the Effective Time to compete in any line 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 (BC) under which the Company or its Subsidiaries grants to any Person contains any right of first refusal, right of first negotiationnegotiation or offer, option to purchase, option to license “most favored nation,” exclusivity or similar covenants that would materially restrict future business activity of the Company or any other similar rights with respect to any material Company Product or any material Intellectual Propertyof its Subsidiaries following the Effective Time, excluding customary back-solicitation provisions;
(xi) with respect to material Company Intellectual Property, any (A) Contract for that limits the disposition of any portion of the assets freedom or business right of the Company or any of its Subsidiaries to use such Company Intellectual Property, (B) settlement Contract, consent-to-use or co-existence agreement or (C) Contract providing for the acquisition by assignment, ownership, creation or development of such Company Intellectual Property (excluding employee and independent contractor agreements on the standard form of the Company or any of its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made which are entered into in the Ordinary Course ordinary course of Businessbusiness), 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) Contract between any settlement, conciliation or similar Contract (A) requiring monetary payments by Governmental Entity and 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); andSubsidiaries;
(xiii) each collective bargaining agreement, neutrality agreement, card check agreement or any other Contract with any union, works council or other labor organization affecting any employee of the Company or any of its Subsidiaries;
(xiv) Contract between the Company or any of its Subsidiaries, on the one hand, and any labor union, labor organization director 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 officer of the Company or its Subsidiaries or any person beneficially owning 5% or more of their respective Affiliates the outstanding Shares, on the other hand (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, except for any Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentBenefit Plan);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments suppliers of the Company and its Subsidiaries paid more than $500,000 per year250,000 for the 12-month period ending September 30, 2023;
(xvi) Contract which restricts the payment of dividends or distributions in respect of any employment Equity Interests of the Company and its Subsidiaries; or
(xvii) other than customer Contracts entered into in the ordinary course, any other Contract not covered by any other subsection hereof, which involves annual consideration in excess of $250,000.
(b) Section 3.16(b) of the Company Disclosure Schedule contains a list, in alphabetical order, of the Company’s top fifteen customers by revenue for the 12-month period ending September 30, 2023.
(c) The Company has delivered or consulting Contract made available to Parent or its Representatives, including by filing as exhibits to Company SEC Documents, as applicable (i) true and correct copies in all material respects of all written Contracts that are required to be set forth on Section 3.16(a) of the Company Disclosure Schedule and (ii) information on all contracts with severancethe customers set forth on Section 3.16(b) of the Company Disclosure Schedule (clauses (i) and (ii) collectively, change the “Company Material Contracts”), together with all material amendments, waivers or other changes thereto (but subject, in controleach case, retention to redactions of pricing and other competitively sensitive information to the extent required by Antitrust Law).
(d) Except for those that have terminated or similar arrangementsexpired in accordance with their terms, that will and except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) each of the Company and its Subsidiaries have performed the obligations required to be performed by it and is not in default under, in breach of, nor 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, would result in any obligation (absolute a default or contingent) of breach by the Company or any of its Subsidiaries to make under any payment or incur any Liability Company Material Contract and (iii) as a result of the consummation date hereof, to the Knowledge of the transactions contemplated Company, there is no breach or threatened breach by this Agreementthe other parties to any Company Material Contract. Except for those that have terminated or expired in accordance with their terms, termination of employment and except as would not, individually or both; and
(xvii) any other Contract in the performance of which requires either (A) annual payments aggregate, reasonably be expected to or from be material to 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, taken as applicablea whole, to all of the Company’s Knowledge, the counterparties thereto, Company Material Contracts are valid and is 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 2 contracts
Sources: Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Patriot Transportation Holding, Inc.)
Material Contracts. (a) Section 3.13(aSchedule 5.9(a) sets forth an accurate and complete list of all of the Company Disclosure Schedule contains a listing following Contracts to which Seller or 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 Affiliates is a party or by is otherwise bound with respect to the Business or the Purchased Assets which they are boundin effect on the Effective Date, other than a Company Benefit Plan, and excluding Easements (each such 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 is required to be set forth listed on Section 3.13(aSchedule 5.9(a), except for those referenced in clause (xii) of the Company Disclosure Schedulebelow, 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 all Transferred Contracts that individually involved expenditures or its Subsidiaries issued purchase orders (whether by or to Seller or an Affiliate thereof) in excess of $1,500,000 in the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariescalendar year ended December 31, 2024;
(ii) all Transferred Contracts between Seller and any Contract under which of its Affiliates that will not be terminated prior to Closing that individually is expected to involve future expenditures (whether by or to Seller) in excess of $1,500,000 in any year;
(iii) all collective bargaining agreements or other agreements with any labor union, employees’ association, or other employee representative of a group of Business Employees (“Collective Bargaining Agreements”);
(iv) all Transferred Contracts providing for the Company extension of credit by Seller in excess of $1,500,000 in any year, other than the extension of credit to vendors in the Ordinary Course of Business;
(v) all Transferred Contracts for gas transportation or its Subsidiaries is lessee gas storage that involved payments by the Business in excess of $1,500,000 in the year ended December 31, 2024;
(vi) all Transferred Contracts restricting the right of Seller to compete with any Person or holds in any line of business or operatesgeographic area or containing exclusivity, fixed pricing, “most favored nations” or similar obligations, in each case, that would be binding on, or otherwise impair Buyer’s and its Affiliates’ operation of, the Business after the Closing;
(vii) all Transferred Contracts concerning the use, licensing, development or maintenance of Intellectual Property or IT Assets, other than nondisclosure or confidentiality agreements entered into in the Ordinary Course of Business or agreements with Business Employees or independent contractors entered into in the Ordinary Course of Business on the Seller’s or an Affiliate’s form agreement;
(viii) all Contracts with any tangible property Governmental Entity relating to the Business, the Purchased Assets or the Assumed Obligations (other than real property), owned by customer Contracts in the Ordinary Course of Business) that will involve payment after the Effective Time of any material amount or impose any other Person, except for material obligation (including any lease or agreement under which conduct-related obligation) after the aggregate annual rental payments do not exceed $500,000Effective Time;
(iiiix) all Leases that are material to the operation of the Business as currently conducted with an annual base rent in excess of $5,000,000;
(x) all partnership, joint venture, and joint ownership agreements, and all similar material agreements (however named) involving a sharing of assets, profits, losses, costs, or Liabilities relating to the Business, the Purchased Assets or the Assumed Obligations;
(xi) each Contract that requires any capital commitment or capital expenditure (including any series of related capital expenditures) in respect of the Business of greater than $5,000,000; and
(xii) all Shared Contracts that individually involved expenditures or issued purchase orders (whether by or to Seller or an Affiliate thereof) with respect to the Business in excess of $1,500,000 in the calendar year ended December 31, 2024.
(b) Seller has made available to Buyer copies of all Material Contracts together with all material amendments, waivers, and other changes thereto, which are correct and complete in all material respects, except as set forth on Schedule 5.9(b). Except as set forth on Schedule 5.9(b): (i) each Material Contract under which is a valid and binding obligation of Seller, enforceable against it in accordance with its terms, including by estoppel or waiver by the Company parties thereto, and, to Seller’s Knowledge, is a valid and binding obligation of each other party thereto, enforceable against it in accordance with its terms, including by estoppel or its Subsidiaries is lessor of or permits any third party to hold or operatewaiver by the parties thereto, in each casecase except as the same may be limited by the Remedy Exceptions; and (ii) neither Seller, nor, to Seller’s Knowledge, any tangible property other party thereto, is (other than real property)or, owned upon the passage of time 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 Contractgiving of notice, or similar both, would be) in default under or breach of any Material Contract, in each case, which requiresexcept for breaches, violations, or defaults as would reasonably not 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 ormaterial, 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)Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spire Missouri Inc), Asset Purchase Agreement (Duke Energy Florida, LLC)
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
Sources: Business Combination Agreement (Strathspey Crown Holdings Group, LLC), Business Combination Agreement (Priveterra Acquisition Corp.)
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
Sources: Purchase Agreement, Purchase Agreement (Hennessy Capital Acquisition Corp. III)
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
Sources: Stock Purchase Agreement (Limoneira CO), Stock Purchase Agreement (Calavo Growers 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
Sources: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises 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 ▇▇▇, 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
Sources: 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) All Contracts, including amendments thereto, required to be filed with the SEC as an exhibit to any Company SEC Documents filed on or after January 1, 2023 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Section 3.13(a4.12(b) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichLetter sets forth, as of the date of this Agreementhereof, a true and complete list of, and the Company or its Subsidiaries has made available to Parent a true, correct and complete copy of, each Contract (other than a Company Benefit Plan) in effect as of the date hereof to which any of the Acquired Companies is a party or by which they any of its 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 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 that:
(i) any Contract relating to Indebtedness for borrowed money 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 SubsidiariesExchange Act);
(ii) any Contract is required to be described pursuant to Item 404 of Regulation S-K promulgated 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 $500,000Securities Act;
(iii) involves (A) annual future expenditures or receipts by an Acquired Company of more than $20,000,000 or (B) annual aggregate payments by, or other consideration from, any Contract under which the Company or its Subsidiaries is lessor Acquired Companies of or permits any third party to hold or operatemore than $20,000,000, and, in each case, any tangible property case of (other than real propertyA) and (B), owned or controlled is not terminable by the an Acquired Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000convenience without material penalty;
(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 exclusivitynon-compete, “most favored nation” or similar provisions, obligations exclusivity provisions with respect to any line of business or restrictions or geographic area that (CA) contains any other provisions restricting or purporting to restrict restricts the ability business 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, Acquired Companies 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 including upon consummation of the transactions contemplated by this Agreement, termination or that otherwise restricts the lines of employment business conducted by the Acquired Companies or boththe geographic area in which the Acquired Companies may conduct business in any material respect, other than any Contracts that may be cancelled without material liability to an Acquired Company upon notice of ninety (90) days or less or (B) would restrict the business of Parent or its Affiliates (other than the Acquired Companies) or the geographic area in which Parent or its Affiliates (other than the Acquired Companies) may conduct business upon consummation of the transactions contemplated by this Agreement;
(v) constitutes or relates to an Indebtedness obligation for borrowed money of the Acquired Companies that either (A) has an outstanding principal amount as of the date hereof greater than $20,000,000 or (B) is secured, directly or indirectly, by a Company Property;
(vi) requires the Acquired Companies to purchase or sell, as applicable, equity interests of any Person or assets, including through a pending purchase or sale of assets, merger, consolidation or similar business combination transaction, that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value or purchase price in excess of $100,000,000;
(vii) relates to an acquisition, divestiture, merger or similar transaction that has continuing material indemnification, guarantee, “earn-out” or other contingent payment obligations on an Acquired Company;
(viii) except to the extent set forth in the Governing Documents of the Company’s Subsidiaries or the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ or the loan documents in effect as of the date hereof evidencing Indebtedness, contains covenants expressly limiting, in any material respect, the ability of the Acquired Companies to sell, transfer, pledge or otherwise dispose of any material assets or business of the Acquired Companies, taken as a whole;
(ix) except to the extent set forth in the Governing Documents of the Company’s Subsidiaries or the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ or the loan documents in effect as of the date hereof evidencing Indebtedness or any Material Company Lease, grants any buy/sell, put option, call option, redemption right, option to purchase, a marketing right, a forced sale, tag or drag right or a right of first offer, right of first refusal or right that is similar to any of the foregoing, pursuant to the terms of which any Acquired Company could be required to purchase or sell a material portion of the equity interests or a material portion of the assets of any Person;
(x) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of the Acquired Companies with or involving a third party;
(xi) calls for (A) aggregate payments by, or other consideration from, any of the Acquired Companies of more than $10,000,000 over the remaining term of such Contract or (B) annual aggregate payments by, or other consideration from, any of the Acquired Companies of more than $2,000,000;
(xii) relates to the settlement (or proposed settlement) of any pending or threatened Action, in writing, other than any settlement that is covered by insurance or indemnification, or provides solely for the payment of less than $10,000,000;
(xiii) pursuant to which any of the Acquired Companies, (A) receives a license of or other rights or interest with respect to any material Intellectual Property, other than off-the-shelf software, and other than any Contract entered into in the ordinary course of business for which the license of or grant of other right or interest with respect to such Intellectual Property is both on a non-exclusive basis and not the primary purpose of such Contract or (B) grants a license of or other rights or interest with respect to any material Intellectual Property owned by any Acquired Company other than non-exclusive licenses granted in the ordinary course of business;
(xiv) is a Fund Agreement; and
(xviixv) any other Contract the performance of which requires either (A) annual payments to or from the is a Material 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 noticeLease.
(c) Each Contract in any of the categories set forth in Section 4.12(a) and (b) to which any of the Acquired Companies is a party or by which it is bound as of the date hereof is referred to herein as a “Material Contract”.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, (i) Each each Material Contract is valid legal, valid, binding and binding enforceable on the each Acquired Company or its Subsidiaries, as applicablethat 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, to the Company’s Knowledge, the counterparties thereto (subject to applicable except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), equity (regardless of whether enforceability is considered in a proceeding in equity or at Law) and (ii) each Acquired Company has performed all obligations required to be performed by it prior to the Company or its Subsidiaries date hereof under each Material Contract and, to the Knowledge of the Company’s Knowledge, each other party thereto has performed all obligations required to be performed by it under such Material Contract prior to the counterparties thereto are not date hereof. None of the Acquired Companies nor, to the Knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, any Material Contract Contract, and (iii) no event has occurred that (that, with or without due notice or lapse of time or both) , would result constitute a violation, breach or default under any Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a material breach of, Company Material Adverse Effect. None of the Acquired Companies has received notice of any violation or default under, or currently owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any Material Contract by Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Except as, individually or its Subsidiaries in the aggregate, would not have, and would not reasonably be expected to have a Company Material Adverse Effect, there are no disputes pending, or, to the Knowledge of the Company’s Knowledge, threatened with respect to any Material Contract, and none of the Acquired Companies has received any written notice of the intention of any other party to a Material Contract to terminate for default, convenience or otherwise any Material Contract.
(e) Section 4.12(e) of the Company Disclosure Letter lists each management agreement pursuant to which any third party manages or operates any of the Company Properties on behalf of any Acquired Company, and describes the property that is subject to such management agreement, the counterparties theretoapplicable Acquired Company that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on the applicable Acquired Company and relating thereto (collectively, the “Management Agreements”). The Company has made available to Parent true and complete copies of all Material Contracts in effect Management Agreements as of the date hereof (other than purchase ordershave been made available to Parent. As of the date hereof, invoiceseach Management Agreement is valid, binding and similar confirmatory or administrative documents that are ancillary in full force and effect as against the applicable Acquired Company and, to the main contractual relationship between Knowledge of the parties Company, as against the other party thereto. None of the Acquired Companies owes any termination, cancellation or other similar fees or any liquidated damages to a particular Contract any third-party manager or group of Contracts and operator, except for fees or damages that, individually or in each casethe aggregate, do would not contain any material executory or continuing terms, conditions, obligations or rights)reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Rithm Capital Corp.), Merger Agreement (Paramount Group, 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
Sources: Merger Agreement (Commonwealth Industries Inc/De/), Merger Agreement (Imco Recycling Inc)
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
Sources: Note Purchase Agreement (Staffing 360 Solutions, Inc.), Note Purchase Agreement (Staffing 360 Solutions, Inc.)
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
Sources: Merger Agreement (Pinnacle Entertainment Inc), Merger Agreement (Pinnacle Entertainment Inc)
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
Sources: Merger Agreement (Andrx Corp /De/), Merger Agreement (Watson Pharmaceuticals 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 ▇▇▇▇▇’▇ 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
Sources: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon 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 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
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Material Contracts. (a) Section 3.13(a) For all purposes of and under this Agreement, a “Material Contract” of the Company Disclosure Schedule contains a listing of or its Subsidiaries shall mean (all such Material 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 any of them or any of their respective properties, rights 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 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 listed or required to be listed as an exhibit to the Company’s annual report on Form 20-F for the year ending December 31, 2016;
(ii) any Contract that requires payments from or to the Company or any of its Subsidiaries of more than $500,000 during the past twelve (12) month period or during the twelve (12) month period following the date hereof and is not cancelable by the Company or its Subsidiaries without any financial or other penalty upon notice of ninety (90) days or less;
(iii) any Contract that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity (whether a corporation, limited liability company or any other entity type) or similar arrangement;
(iv) any Contract (other than any Contract whose only parties are the Company and/or its Subsidiaries) relating to Indebtedness for borrowed money of the Company owing or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of guaranteed by the Company or its Subsidiaries, other than any Contract relating to Indebtedness with an outstanding principal amount of less than $250,000 (whether incurred, assumed, guaranteed or secured by any asset);
(iiv) any Contract under which the Company or its Subsidiaries is lessee has made any advance, loan, extension of credit 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;
Person in excess of $250,000 (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 other than the Company or its Subsidiaries (or Parent or and except for any extensions of its Affiliates after trade credits 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 (B) under which the Company or its Subsidiaries grants to any Person any right ordinary course 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);
(xivi) any Contract for (A) that contains a license in respect of Intellectual Property Rights where such license is material to the disposition of any portion of the assets or business of the Company or its Subsidiaries (except for (1) licenses of commercially available, off-the-shelf, click-wrap or for shrink-wrap software, (2) non-exclusive licenses of Intellectual Property Rights incidental to the acquisition by the Company sale or its Subsidiaries purchase of the assets products or business of any other Person (other than acquisitions or dispositions made services in the Ordinary Course ordinary course of Business), business consistent with past practice) 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 for the development (by itself or through a Governmental Authority or (Cthird party) that imposes of any material, non-monetary obligations on Intellectual Property Rights material to 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 current products of the Company or its Subsidiaries, on the other handmanufacturing thereof;
(xivvii) any Contract with to which the Company is a party that contains any continuing covenant by, or its Subsidiariesrestriction on, 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 not compete or engage in any payment line of business or incur to not engage in its business in any Liability geographic location, in each case other than such Contracts that may be canceled without liability to the Company or any of its Subsidiaries without notice;
(viii) any Contract providing for (x) Government Grants from the OCS or any other Israeli Governmental Authority, which Government Grant is extended to support the Company’s research and development operations (i.e., Kitvei Ishur), or (y) material Government Grants from any other Governmental Authority;
(ix) any Contract with any directors, executive officers (as a result such term is defined in the Exchange Act) or five-percent stockholders of the consummation Company or any of its Affiliates or immediate family members;
(x) any Contract providing for material “earn-outs” or other material contingent payments by the Company or any of its Subsidiaries other than those with respect to which there are no further obligations under such provisions;
(xi) any Contract entered into after January 1, 2015, or has not yet been consummated, and involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business (or assets comprising all or part of a business) or capital stock or other equity interest of another Person;
(xii) any Contract involving a grant to any Person of any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy any material assets, rights or properties of the transactions contemplated by this Agreement, termination of employment or bothCompany; and
(xviixiii) any other Contract the performance of which requires either (A) annual payments that would be required to or from be filed by the Company or its Subsidiaries in excess as a “material contract” pursuant to Item 601(b)(10) of $300,000 or (B) aggregate payments to or from Regulation S-K under 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 noticeSecurities Act.
(b) Section 3.10(b) of the Company Disclosure Letter contains a list of all Material Contracts (other than any Material Contract contemplated by clause (i) Each of the definition thereof) as of the date of this Agreement, and a true, accurate and complete copy of each such Material Contract has been provided to Parent prior to the date of this Agreement.
(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 Material Contract is valid and binding on the Company or and enforceable against the Company and its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties 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 except that such enforceability (subject to x) 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 (y) is subject to general principles of equity), (ii) neither the Company or nor any of its Subsidiaries andnor, 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, under any such Material Contract and (iii) no event the Company has occurred that (with not received written notice of any actual or without due notice or lapse of time or both) would result in a material breach potential violation of, or default underfailure to comply with, any term of 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
Sources: Merger Agreement (Enzymotec Ltd.), Merger Agreement (Frutarom LTD)
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
Sources: Merger Agreement (BladeLogic, Inc.), Merger Agreement (BMC Software 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 The Company has with no material outstanding furnished or executory obligations or Liabilities (such Contracts as are required agreed to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct make available to News Corp. accurate and complete copies of the Material Contracts listed on Section 3.13(a(as defined below) of the Company Disclosure and the Company Subsidiaries, all of which are listed on Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) 3.9. There is not under 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 Material Contracts 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 operatesexisting breach, 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 default or event contemplated of default 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 nor event that 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) both would result in constitute a material breach ofbreach, default or event of default under, any Material Contract by the Company or its any of the Company Subsidiaries orother than breaches, defaults or events of default which would not have a Business Unit Material Adverse Effect; nor does the Company have Knowledge of, and the Company has not received notice of, or made a claim with respect to, any breach or default by any other party thereto. As used herein, the term "Material Contracts" shall mean (i) all contracts and agreements filed, or required to be filed, as exhibits to the Company’s Knowledge's Annual Report on Form 10-K for the year ended December 31, 1996; (ii) all contracts and agreements entered into since December 31, 1996 which would be required to be filed as an exhibit to the counterparties thereto. The Company's Quarterly Report on Form 10-Q for the quarter ending March 31, 1997 or to any Current Report on Form 8-K; (iii) any debt instrument, including, without limitation, any loan agreement, promissory note, security agreement or other evidence of indebtedness, where the Company has made available or any Company Subsidiary is a lender or borrower; (iv) any contract or commitment restricting the Company or any Company Subsidiary from engagement in any line of business; (v) any in-store agreement with a retailer; (vi) any agreement with a manufacturer with a term in excess of twelve months; (vii) any material joint venture agreement; (viii) any agreement providing for contingent consideration; and (ix) any agreement, option, commitment or rights with, to Parent true and complete copies of all Material Contracts or in effect as of any third party to acquire or to sell a material business division or unit after 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
Sources: Merger Agreement (HMC Acquisition Corp /De/), Merger Agreement (Heritage Media 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 ▇▇▇▇▇▇ 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
Sources: Stock Purchase Agreement (Ohio Power Co), Stock Purchase Agreement (Algonquin Power & Utilities 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 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
Sources: Merger Agreement (Acorn International, Inc.), Merger Agreement (Tongjitang Chinese Medicines Co)
Material Contracts. (a) Section 3.13(a) Except for this Agreement and purchase orders entered into in the Ordinary Course of Business that do not contain material terms other than price and quantity not contained on the Company Disclosure Schedule contains a listing of all Contracts described in clauses underlying Contract (i) through (xiii) below so long as such underlying Contract has been made available to whichParent), as of the date of this Agreement, neither the Company or nor any of its Subsidiaries (including Company Holdco and Company Merger Sub) is a party to, or by which they are boundis expressly bound by, 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):Contract that:
(i) any Contract would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(ii) is a Company Real Property Lease relating to Indebtedness for borrowed money real property that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) contains material restrictions on the right of the Company or any of its Affiliates (including, for the avoidance of doubt, Parent and its Subsidiaries from and following the Closing) to engage in activities competitive with any Person or to solicit customers or suppliers anywhere in the placing world;
(iv) grants “most favored nation” status applicable to the Company or any of its Affiliates (including, for the avoidance of doubt, Parent and its Subsidiaries from and following the Closing);
(v) provides for the formation, creation, operation, management or control of any joint venture, partnership or other similar arrangement with a Lien third party;
(vi) is an indenture, credit agreement, loan agreement, note or other than a Permitted Lien) on any material assets or properties Contract providing for Indebtedness of the Company or any if its Subsidiaries (other than Indebtedness among the Company and/or any of its Subsidiaries) having an outstanding amount or notional amount (or, in the case of finance leases, the amount capitalized and reflected as a liability on the balance sheet) in excess of $5 million;
(vii) is a settlement, conciliation or similar Contract, (A) entered into in the last three years, that would require the Company or any of its Subsidiaries to pay consideration of more than $5 million after the date of this Agreement or (B) that contains material restrictions on the business and operations of the Company or any of its Subsidiaries;
(iiviii) any Contract under which provides for the acquisition or disposition by the Company or any of its Subsidiaries is lessee of any business (whether by merger, sale of stock, sale of assets or holds otherwise), or operatesany real property, that would, in each case, any tangible property (other than real property), owned by any other Person, except for any lease reasonably be expected to result in the receipt 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 making by the Company or its Subsidiaries, except for any lease or agreement under which Subsidiary of the aggregate annual rental Company of future payments do not exceed in excess of $200,0005 million;
(ivix) is an acquisition agreement that contains material “earn-out” or other material contingent payment obligations;
(x) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $2 million;
(Axi) joint ventureis reasonably likely to require, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development during the remaining term of such 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 annual payments to or from the Company or and its Subsidiaries in excess 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)15 million;
(v) any Contract that (Axii) 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 restricts the ability of the Company or any of its Subsidiaries to selldeclare or pay dividends or make distributions in respect of their capital stock, manufacturepartner interests, develop, commercialize, test membership interests 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 Closingother equity interests;
(vixiii) any Contract requiring any future capital commitment contains a standstill 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 similar agreement pursuant to which any a Person (other than the Company has agreed not to acquire assets or a Subsidiary) has guaranteed the Liabilities securities 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 another Person;
(ixxiv) any is a Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which 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 union, labor organization director or works council representing employees officer of the Company or its Subsidiariesany Person beneficially owning five percent or more of the outstanding shares of Company Common Stock or any of their respective Affiliates, on the other hand;
(xivxv) any Contract with 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 a party, or by which any of their respective Affiliates them is bound, the ultimate contracting party of which, is a Governmental Entity (excluding employee confidentiality and invention assignment agreements, equity including any subcontract with a prime contractor or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentother subcontractor who is a party to any such Contract);
(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) pursuant to which: (A) the Company or any employment of its Subsidiaries is granted any license, covenant not to sue, release, waiver, immunity, option or consulting Contract with severance, change in control, retention other right (including co-existence or similar arrangementscommitments) with respect to Intellectual Property (including data) of a third Person, that will result in any obligation where such Intellectual Property (absolute or contingentincluding data) is material to the business of the Company or any of its Subsidiaries (other than (i) non-exclusive licenses for, or other similar non-exclusive rights to, unmodified, commercially available “off-the-shelf” software that have been granted on standardized, generally available terms, for which the one-time or annual fee, as applicable, does not exceed $2,000,000, (ii) any non-exclusive license or other right that is merely incidental to make any payment or incur any Liability as a result the subject matter of the consummation applicable Contract the commercial purposes of which is primarily for something other than such license or right, (iii) Contracts between or among any of the transactions contemplated by Company’s Subsidiaries or between or among the Company and any of its Subsidiaries, and (iv) non-exclusive licenses granted pursuant to any standard online or mobile customer terms of use, terms of service or similar terms of the Company or any of its Subsidiaries, such as website terms of use); (B) the Company or any of its Subsidiaries grants to another Person any license, covenant not to sue, release, waiver, immunity, option or other right with respect to any Company Intellectual Property (including data) that is material to the businesses of the Company and its Subsidiaries (other than (i) non-exclusive licenses granted to suppliers, vendors, contractors or service providers in the Ordinary Course of Business solely to the extent necessary for the purpose of their provision of goods or services to the Company or its Subsidiaries, (ii) any non-exclusive license or other similar right that is merely incidental to the subject matter of the applicable Contract the commercial purpose of which is primarily for something other than such license or right, (iii) Contracts between or among any of the Company’s Subsidiaries or between or among the Company and any of its Subsidiaries, and (iv) non-exclusive licenses granted pursuant to standard online or mobile customer terms of use, terms of service, or similar terms of the Company or any of its Subsidiaries, such as website terms of use; or (C) the Company or any of its Subsidiaries has assigned, transferred, sold, acquired, obtained or purchased, or agreed to assign, transfer, sell, acquire, obtain or purchase, any Intellectual Property (including data) that is material to the businesses of the Company and its Subsidiaries and that was executed in the three years prior to the date of this AgreementAgreement (other than Contracts with suppliers, termination vendors, service providers, employees and contractors entered into in the Ordinary Course of employment Business and Contracts solely between or both; andamong any of the Company’s Subsidiaries or solely between or among the Company and any of its Subsidiaries);
(xvii) evidences financial or commodity hedging or similar trading activities, including any other Contract the performance of which requires either (A) annual payments to interest rate swaps, financial derivatives master agreements or from the Company confirmations, or its Subsidiaries in excess of $300,000 futures account opening agreements and/or brokerage statements or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andsimilar Contract, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(xviii) is a Contract with a Company Top Customer or Company Top Supplier; or
(xix) to the extent not terminable otherwise described in clauses (i) through (xviii) of this Section 3.20(a), 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. Each Contract of the applicable type described in clauses (i) through (xix) of this Section 3.20(a) and the Contracts set forth on Section 3.20(a)(xx) of the Company Disclosure Schedules being herein referred to as a “Company Material Contract.”
(b) True, correct and complete copies of each Company Material Contract have been publicly filed with the SEC prior to the date of this Agreement or otherwise made available to Parent. Neither the Company nor any Subsidiary of the Company is in breach of or in default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, as of the date of this Agreement, no other party to any Company Material Contract is in breach of or in default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreement, each Company Material Contract is a valid and binding obligation 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 Subsidiary of the Company or its Subsidiaries, as applicablethat is party thereto and, to the Knowledge of the Company’s Knowledge, 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, 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)Enforceability Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Gildan Activewear Inc.), Merger Agreement (Hanesbrands Inc.)
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
Sources: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, 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
Sources: Merger Agreement (Plethico Pharmaceuticals Ltd.), Merger Agreement (Nutra Acquisition CO Inc.)
Material Contracts. (a) Except, in each case, as listed in Section 3.13(a3.1(j) of the Company American Disclosure Schedule contains a listing of all Contracts described in clauses Letter:
(i) through As of the date of this Agreement, neither American nor any of its Subsidiaries is a party to or bound by any Contract (xiii) below to which, other than Contracts rejected in connection with the Cases as of the date of this Agreement) required pursuant to Item 601 of Regulation S-K under the Securities Act to be filed as an exhibit to American’s Annual Report on Form 10-K for the year ended December 31, 2011, or on any Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by American since December 31, 2011, which has not been so filed.
(ii) As of the Company or date of this Agreement, neither American nor any of its Subsidiaries is a party to or is bound by which they are bound, any Contract (other than Contracts rejected in connection with the Cases as of the date of this Agreement) that is: (A) a Company Benefit Plannon-competition Contract or other Contract (other than the American CBAs) that (I) purports to limit in any material respect (including pursuant to an exclusivity provision that is material to the operation of the business of American and its Subsidiaries, and that are not expired taken as a whole) either the type of business in which American or have not been terminated and not including its Subsidiaries may engage or the manner or locations in which any Contracts of them may so engage in any business, or (II) could require the disposition of any material assets or line of business of American or any of its Subsidiaries; (B) a material joint venture, partnership or business alliance Contract; (C) a capacity purchase, regional carrier or similar Contract; (D) a material co-branded credit card or credit card processing Contract; or (E) a Contract pursuant to which any indebtedness is outstanding or may be incurred (except for any Contract pursuant to which the Company has aggregate principal amount of such indebtedness cannot exceed $200,000,000).
(iii) All Contracts (other than Contracts rejected in connection with no material outstanding the Cases as of the date of this Agreement or executory obligations rejected in connection with the Cases after the date hereof in accordance with this Agreement) that have been filed as an exhibit to American’s Annual Report on Form 10-K for the year ended December 31, 2011, or Liabilities (such on any Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by American since December 31, 2011, and all Contracts as are required to be set forth on listed in Section 3.13(a3.1(j)(ii) of the Company American 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 representativesLetter, together with all amendments thereto):
(i) any Contract relating amendments, exhibits and schedules to Indebtedness for borrowed money of such Contracts, shall constitute 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;“American Material Contracts.”
(iv) any A true and complete copy of each American Material Contract has previously been delivered or made available to US Airways (Asubject to applicable confidentiality restrictions) joint ventureand each American Material Contract that is a Binding American Contract is a valid and binding agreement of American or one of its Subsidiaries, profit-sharingas the case may be, partnership, collaboration, co-promotion, commercialization or research or development Contractand is, or similar Contractwill be, in each casefull force and effect, which requires, except to the extent it has previously expired in accordance with its terms or if the failure to be in full force and effect 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 ornot, individually or in the aggregate, in reasonably be expected to have 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 American Material Adverse Effect. Neither American nor any of its Subsidiaries to make is in default or breach under the terms 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 American Material 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 a Binding American Contract, which default or breach would, individually or in 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 Subsidiariesaggregate, as applicable, reasonably be expected 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 an American 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
Sources: Merger Agreement (Us Airways Group Inc), Merger Agreement (Amr Corp)
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 ▇▇▇ 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 ▇▇▇ 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
Sources: Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
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
Sources: Merger Agreement (MasterBrand, Inc.), Merger Agreement (MasterBrand, Inc.)
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
Sources: Class B Unit Purchase Agreement (Ada-Es Inc), Class B Unit Purchase Agreement (Ada-Es Inc)
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
Sources: Merger Agreement, Merger Agreement (Quality Systems, Inc)
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
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Arrowhead Research Corp)
Material Contracts. (a) Section 3.13(a) of Other than this Agreement and the Company Disclosure Schedule contains Ancillary Documents to which SPAC is a listing of all Contracts described in clauses (i) through (xiii) below to which, party as of the date hereof or such other Ancillary Documents that SPAC shall execute after the date hereof and which are attached as exhibits hereto, Section 4.13(a) of this Agreementthe SPAC Disclosure Schedules set forth a true, correct and complete list of the Company or its Subsidiaries Contracts to which SPAC is a party or by which they are any of its properties or assets may be bound, other subject or affected, which (i) creates or imposes a Liability greater than $100,000, (ii) may not be cancelled by SPAC on less than sixty (60) days’ prior notice without payment of a Company Benefit Planmaterial penalty or termination fee or (iii) prohibits, and that are not expired prevents, restricts or have not been terminated and not including impairs in any Contracts pursuant to which material respect any business practice of SPAC as its business is currently conducted, any acquisition of material property by SPAC, or restricts in any material respect the Company has with no material outstanding ability of SPAC from entering into this Agreement or executory obligations Ancillary Documents or Liabilities consummating the Transactions (each such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContract, the a “SPAC Material ContractsContract”). True, correct and complete copies of the All SPAC 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 thereto):the Seller.
(b) With respect to each SPAC Material Contract: (i) any the SPAC Material Contract relating to Indebtedness for borrowed money was entered into at arms’ length and in the ordinary course 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) 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 SPAC Material Contract is valid legal, valid, binding and binding on the Company or its Subsidiaries, as applicableenforceable in all material respects against SPAC and, to the Company’s KnowledgeKnowledge of SPAC, the counterparties other parties thereto, and is in full force and effect and enforceable (except, in accordance with its terms against each case, as such enforcement may be limited by 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 equityEnforceability Exceptions), (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) SPAC is not in breach or default in any material respect, and no event has occurred that (with or without due notice or lapse the passage of time or both) giving of notice or both would result constitute such a breach or default in a any material breach ofrespect by SPAC, or default underpermit termination or acceleration by the other party, any under such SPAC Material Contract; (iv) no party to a SPAC Material Contract by the Company or its Subsidiaries has given written notice of or, to the Company’s KnowledgeKnowledge of SPAC, threatened any potential exercise of termination rights with respect to any SPAC Material Contract; and (v) to the counterparties thereto. The Company has made available Knowledge of SPAC, no other party to Parent true and complete copies of all any SPAC Material Contracts Contract is in effect as of the date hereof (other than purchase orders, invoicesbreach or default in any material respect, and similar confirmatory no event has occurred that with the passage of time or administrative documents that are ancillary to the main contractual relationship between the parties to giving of notice or both would constitute such a particular Contract breach or group of Contracts and thatdefault by such other party, in each case, do not contain or permit termination or acceleration by SPAC under any material executory or continuing terms, conditions, obligations or rights)SPAC Material Contract.
Appears in 2 contracts
Sources: Business Combination Agreement (Mountain Lake Acquisition Corp.), Business Combination Agreement (Mountain Lake Acquisition Corp.)
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
Sources: Equity Purchase Agreement (Pseg Power LLC), Equity Purchase Agreement (Pseg Power LLC)
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 s▇▇ 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 s▇▇ 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
Sources: Merger Agreement (Yan Rick), Merger Agreement (51job, 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
Sources: Merger Agreement (Berkshire Hathaway Inc), Merger Agreement (LUBRIZOL Corp)
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
Sources: Purchase and Sale Agreement (Home Depot Inc), Purchase and Sale Agreement (HSI IP, Inc.)
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
Sources: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
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
Sources: Merger Agreement (Providence Equity Partners VI L P), Merger Agreement (Sra International 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
Sources: Agreement and Plan of Merger (Pacifico Acquisition Corp.), Merger Agreement (Pacifico Acquisition 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 h▇▇▇▇▇, 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
Sources: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
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
Sources: Asset Purchase Agreement (Global Water Resources, Inc.), Asset Purchase Agreement (Global Water Resources, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports that are made available to Parent prior to the date hereof or set forth in Section 3.13(a) 4.14 of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date hereof, none 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):Contract that:
(i) any Contract relating 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 Form 20-F under which there are material assets rights or properties of the Company or its Subsidiariesobligations outstanding;
(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 orwould, individually or in the aggregate, prevent, materially delay or materially impair the Company’s ability to consummate the Transactions;
(iii) is (A) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, or mortgage, or (B) a Contract relating to Indebtedness or Encumbrance, in each case, having an outstanding amount in excess of $200,000 500,000 individually or made $3,000,000 in the aggregate other than (x) intercompany agreements or (y) a Contract in respect of any capital contribution tobank acceptance, cash collateralized letter of guarantees, letter of credit, pledge or deposit to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other investment in, any Personobligations of a similar nature provided that the aggregate outstanding amount of Indebtedness referred to in clause (y) shall not exceed $4,000,000;
(ixiv) any is a 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 any of its Subsidiaries was granted any land use rights;
(v) involves the acquisition from another Person or Parent disposition to another Person, directly or indirectly (by merger, license, Contract or otherwise), of share capital, other equity interests or control of another Person including the acquisition of all or substantially all assets of such Person (1) which took place after December 31, 2012, or (2) contains representations, warranties, covenants, indemnities, tax sharing provisions or other obligations (including indemnification, “earn-out” (when in cash or in any other form of consideration) or other contingent obligations) that are still in effect and, individually, could reasonably be expected to result in payments by the Company or any of its Affiliates after Subsidiaries in excess of $1,000,000. As of June 30, 2013, the Closingaggregate amount of contingent payment obligations arising out of acquisitions by the Company, determined in a manner consistent with GAAP, is approximately $36 million;
(vi) prohibits the payment of dividends or distributions in respect of the share capital of the Company or any of its wholly owned Subsidiaries, prohibits the pledging of the share capital of the Company or any of its wholly owned Subsidiaries or prohibits the issuance of any guaranty by the Company or any of its wholly owned Subsidiaries;
(vii) is a license agreement that is material to the business of the Company and its Subsidiaries, taken as a whole, pursuant to which the Company or may be required to pay milestones, royalties any of its Subsidiaries licenses in Intellectual Property 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 licenses out Intellectual Property owned by the Company or its Subsidiaries grants (other than license agreements for commercially available software on standard terms);
(viii) (in respect of any master service agreement with a customer that is any of the top twenty (20) customers of the Company for the financial year ended December 31, 2012, or any statements of work or purchase orders under such master service agreement only), contains provisions that prohibit the Company or any of its Subsidiaries from competing in any material line of business in any material respect, grant a right of exclusivity 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 which prevents the Company or its Subsidiaries from entering any territory, market or field anywhere in the world in any material respect, subject the Company or any of its Subsidiaries to “most favored nation,” “benchmarking” or “price downward adjustment” obligations, or could require the Company or any of its Subsidiaries to transfer any of its assets or operations (including CDCs) to a third party;
(ix) provides for any change of control or similar payments in excess of $3,000,000;
(x) is a Contract (excluding purchase orders or statements of work) under which the acquisition actual payment or receipt of amounts by the Company or its Subsidiaries of the assets or business of any other Person more than $6,000,000 (other than acquisitions or dispositions made any Contract referenced in clause (xii) below) during the Ordinary Course of Business)first six (6) months for the financial year ending December 31, 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 obligation2013;
(xiixi) any settlement, conciliation is a master service agreement or similar Contract (A) requiring monetary payments by excluding purchase orders or statements of work), 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 top twenty (20) customers of the Company or its Subsidiariesfor the financial year ended December 31, 2012, on the other hand;
(xivxii) is a joint venture contract, strategic cooperation or partnership arrangement (including cooperation or long-term agency contracts entered into at the corporate headquarters level with insurance companies), or any Contract with other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(xiii) is between the Company or any of its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company directors 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 officers of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result their immediate family members or shareholders of the consummation Company or any Subsidiary holding more than 5% of the transactions contemplated by this Agreementvoting securities of the Company or any Subsidiary, termination of employment on the other hand, under which there are material rights or both; andobligations outstanding;
(xviixiv) involves waiver, compromise, or settlement of any Action, other than the settlement of any Action (A) in the ordinary course of business and consistent with past practice or (B) involving an amount in dispute of not more than $500,000;
(xv) is between the Company or any of its Subsidiaries, on the one hand, and a Governmental Authority, on the other hand, with a transaction amount of more than $2,000,000; or
(xvi) any other Contract Contracts, whether or not made in the performance ordinary course of business, the absence of which requires either would reasonably be expected to have a Material Adverse Effect. Each such Contract described in clauses (Ai) annual payments through (xvi) above is referred to herein as a “Material Contract”; provided that Material Contracts shall not include any (x) Benefit Plans, (y) any purchase orders or from statements of work and (z) any management, employment, severance, change in control, transaction bonus, consulting, repatriation or expatriation agreement or other Contract between the Company or one of its Subsidiaries and any Service Provider with respect to which the Company or one of its Subsidiaries has or may have any material liability or obligation, which Contracts are dealt with exclusively in Section 4.10.
(b) Except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries 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 party thereto and, to the Company’s Knowledge, the counterparties thereto (other parties thereto, in each case 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) neither the Company or nor any of its Subsidiaries andnor, to the Company’s Knowledge, the counterparties any other party thereto are not is in material breach or violation of, or default under, any Material Contract 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 Knowledge, the counterparties thereto. The Company has made available to Parent true action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract; and 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 iii) to the main contractual relationship between Company’s Knowledge, the parties to a particular Contract Company and its Subsidiaries have not received any written claim or group notice of Contracts and thatdefault, in each case, do not contain termination or cancellation under any material executory or continuing terms, conditions, obligations or rights)such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Chen Chris Shuning), Merger Agreement (Pactera Technology International Ltd.)
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
Sources: Equity Purchase Agreement, Equity Purchase Agreement (Sandridge Energy Inc)
Material Contracts. (a) Section 3.13(a3.21(a) of the Company Disclosure Schedule contains a listing lists each of the following Contracts of Seller (to the extent related to and necessary for the Business) or Cytori UK, all Contracts described in clauses of which have been delivered by Seller to Buyer: (i) through (xiii) below to which, as all Contracts involving total annual payments in excess 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 $50,000 that are not expired cancelable without penalty or have not been terminated further payment and not including any without more than 30 days’ notice; (ii) each Contract involving $50,000 or more per year in revenue to the Business or to Cytori UK; (iii) 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 “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 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 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 having an outstanding principal amount in excess of $1,000,000 over 100,000; (iv) each Contract with a distributor, consignor, sales representative or sales agent; (v) all material Contracts that limit or purport to limit the life ability of the Contract or (B) other Contract Seller, with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits the Business, or purports Cytori UK 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 geographic area or during any period of time 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, contain “most favored nationnations” 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;
restrictions; (vi) all Contracts under which Seller or Cytori UK have advanced or loaned monies to 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;
other Person; (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 with any Governmental Authority; (Aviii) requiring monetary payments by all Contracts for capital expenditures in excess of $50,000; (ix) all material Contracts between Seller (in respect of the Company Business) 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 SubsidiariesCytori UK, on the one hand, and any labor union, labor organization or works council representing employees Affiliate of the Company or its SubsidiariesSeller, on the other hand;
; (xivx) any each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller relating to the Business or by Cytori UK, other than in the Ordinary Course of Business; and (xi) each other Contract with material to the Company Business, whether or its Subsidiaries, on not entered into in the one hand, and any officer, director, manager, stockholder, member Ordinary Course 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 contingentBusiness. Section 3.21(a) of the Company Disclosure Schedule also describes any current negotiations regarding entering into or amending, supplementing or modifying any of its Subsidiaries Contract listed or required to make any payment or incur any Liability be listed in such section. Except as a result disclosed in Section 3.21(a) of the consummation of the transactions contemplated by this AgreementDisclosure Schedule, termination of employment or both; and
(xvii) any other each Material 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 SubsidiariesSeller (or, as applicable, Cytori UK) and, to the Company’s KnowledgeKnowledge of Seller, 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) upon consummation of the Company or its Subsidiaries andtransactions contemplated by this Agreement, except to the Company’s Knowledge, extent that any consents set forth in Section 3.02(d) of the counterparties thereto Disclosure Schedule are not obtained, shall continue in material full force and effect without penalty or other adverse consequence. Except as disclosed in of the Disclosure Schedule, neither Seller nor Cytori UK is in breach of, or default under, any Material Contract and to which it is a party.
(iiib) There are no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach renegotiations of, attempts to renegotiate or default under, outstanding rights to renegotiate any Material Contract by the Company material amounts paid or its Subsidiaries payable to Seller (or, as applicable, Cytori UK) under any of the Contracts listed or required to be listed on Section 3.21(a) of the Company’s Knowledge, the counterparties theretoDisclosure Schedule. The Company No Person has a Contractual or statutory right to demand or require such renegotiation and no such Person 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)demand for such renegotiation.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Cytori Therapeutics, Inc.), Asset and Equity Purchase Agreement (Cytori Therapeutics, Inc.)
Material Contracts. (a) Section 3.13(a6.17(a) of the Company UWWH Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as Schedules sets forth each of the date following that UWWH or any 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):date hereof:
(i) any non-competition agreements or any other Contract relating to Indebtedness for borrowed money that materially limits or will materially limit any of the Company UWWH or its Subsidiaries from engaging in their respective businesses or to the placing of a Lien (other than a Permitted Lien) on contains exclusivity, non-solicitation or “most favored nation” provisions that materially limit or would materially limit any material assets or properties of the Company UWWH or its SubsidiariesSubsidiaries from engaging in their respective businesses;
(ii) any Contract under which the Company with respect to any partnerships, joint ventures 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 $500,000strategic alliances material to UWWH;
(iii) any Contract under pursuant to which the Company any of UWWH or its Subsidiaries is lessor of has or permits any third party to hold will incur Indebtedness for borrowed money or operate, in each case, any tangible property other material Indebtedness (other than real propertydeferred revenue), 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 Contract that provides 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 will provide for annual payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life 30 million by or to UWWH or any of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property its Subsidiaries (other than any Non-Scheduled Contractsleases set forth on Section 6.8(c) of the UWWH Disclosure Schedules);
(v) any Contract that provides for annual payments in excess of $30 million and contains a “change of control” provision (Aother than leases set forth on Section 6.8(c) 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 ClosingUWWH Disclosure Schedules);
(vi) any Contract requiring that is a settlement, conciliation or similar agreement with any future capital commitment Governmental Authority or capital expenditure (pursuant to which UWWH or series any of capital expenditures) by the Company or its Subsidiaries in an amount will be required after the date of this Agreement to pay consideration in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement1 million;
(vii) any Contract requiring for the Company employment or its Subsidiaries to guarantee the Liabilities engagement of any Person (UWWH Employee or other than the Company individual on a full-time, part-time 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 consulting basis and providing for annual compensation in excess of $200,000250,000 but excluding offer letters with non-binding compensation terms that (A) permit discretionary periodic adjustments to the base rate of compensation and incentive compensation payable thereunder, (B) do not commit to any severance obligations, other than under the generally applicable UWWH severance policy and (C) do not contain any other material elements of compensation or benefits thereunder other than participation in the applicable UWWH benefits programs on the same terms as other similarly situated employees;
(viii) any Contract that limits or otherwise restricts the ability of UWWH or any of its Subsidiaries to pay dividends or make distributions to the UWWH Stockholder; or
(ix) any license agreement or Contract that is material to UWWH’s business under which the Company UWWH or any of its Subsidiaries hasis a licensee or licensor of any Intellectual Property or that is a settlement, directly royalty, covenant not to ▇▇▇, consent, concurrent use or indirectly, made or agreed to make any loan, advance, or assignment of payment other agreement with respect to any Person outside Intellectual Property that is material to UWWH’s business (in each case other than non-disclosure agreements entered into in the ordinary course of business and licenses and related service agreements for any item of commercially available, unmodified software with an annualized license fee of less than $2.5 million). The Contracts required to be set forth on Section 6.17(a) of the Ordinary Course UWWH Disclosure Schedules, the collective bargaining agreements set forth on Section 6.15(a) of Business orthe UWWH Disclosure Schedules (and any other such Contracts entered into in the ordinary course of business prior to the Closing) and real property leases for facilities in excess of 200,000 rentable square feet (it being understood that such leases as are in effect as of the date hereof are set forth on Section 6.8(c) of the UWWH Disclosure Schedules and are marked with an asterisk) are referred to herein as the “UWWH Material Contracts”. UWWH has provided IP with a correct and complete copy of all UWWH Material Contracts in effect as of the date hereof.
(b) Except as has not had, and 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 UWWH Material Adverse Effect, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 each of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company UWWH Material Contracts are valid and in full force and effect, against UWWH or its Subsidiaries Subsidiary which is a party thereto (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 will become a party thereto 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 connection 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;
(xivTransactions) 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 CompanyUWWH’s Knowledge, the counterparties counterparty thereto, and is in full force constitute legal, valid and effect and enforceable in accordance with its terms against the Company binding obligations of UWWH or its Subsidiaries Subsidiary which is party thereto and, to the CompanyUWWH’s Knowledge, the counterparties counterparty thereto, enforceable by UWWH or the Subsidiary which is a party thereto in accordance with their terms except to the extent that such enforceability may be limited by (subject to i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereinafter in effect, relating to creditors’ rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) or (ii) Laws affecting generally relating to the enforcement of creditors’ rights and subject to general principles employee restrictive covenants.
(c) Neither UWWH nor any of equity), (ii) the Company or its Subsidiaries andis in material breach or default under (and no event has occurred, and neither UWWH nor its Subsidiaries has violated any provisions of, or committed or failed to perform any act that, with notice or the passage of time or both would constitute a material breach or default under) any UWWH Material Contract nor, to the CompanyUWWH’s Knowledge, the counterparties thereto are not is any other party to any UWWH Material Contract in material breach ofdefault thereunder, except as has not had and would not reasonably be expected to have, individually or default underin the aggregate, any a UWWH 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
Sources: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)
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
Sources: Merger Agreement (Universal Outdoor Holdings Inc), Merger Agreement (Universal Outdoor Holdings Inc)
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
Sources: Agreement and Plan of Merger (Abaxis Inc), Merger Agreement (Zoetis 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
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
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
Sources: 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
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
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
Sources: Agreement and Plan of Merger (Hawaiian Natural Water Co Inc), Merger Agreement (Amcon Distributing Co)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans or as filed with the Filed SEC Reports in unredacted form with any material omitted schedules Made Available to Parent, Section 3.13(a3.12(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses true and complete list (i) through (xiii) below to whichexcluding any purchase orders or sales orders), 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 Made Available to Parent true and complete copies, of the following:
(such Contracts as are i) each Company Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Company Contract involving a material joint venture, strategic alliance, partnership, sharing of profits or revenue or similar Contract establishing any material research and development collaboration, except for such Contracts entered into in the ordinary course of business;
(iii) each Company Contract for any capital commitment, capital loan or capital expenditure over the remaining life of such Company Contract in excess of $3,500,000 that is not included in the Company’s capital expenditure budget set forth on in Section 3.13(a3.12(a)(iii) 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 $200,000Letter;
(iv) each Company Contract entered into at any time since January 1, 2022: (A) joint venturegoverning the disposition or acquisition by any Acquired Company of any business, profit-sharingproduct line or other assets outside the ordinary course of business (whether by merger, partnershipsale or purchase of assets, collaboration, co-promotion, commercialization sale or research purchase of stock or development Contract, equity ownership interests 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 otherwise) for consideration in excess of $1,000,000 over the life of the Contract 3,000,000 or (B) other Contract with respect pursuant to material which any Acquired Company Licensed Intellectual Property will acquire any interest, or will make an investment (other than short-term investments including money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the Company Balance Sheet or the notes thereto, or incurred in the ordinary course of business since the date of the Company Balance Sheet) for consideration in excess of $3,000,000 in any Non-Scheduled Contractsother Person (other than another Acquired Company);
(v) each Company Contract governing the disposition or acquisition by any Acquired Company of any material business, material product line or other material assets or equity securities (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) with material remaining guarantee, “earn out”, or similar contingent payment or obligations on the part of any Acquired Company;
(vi) each Company Contract that by its terms (A) limits or purports to limit, in the ability of any material respect, the freedom of the Acquired Company or its Subsidiaries to engage or compete in any line of business or compete with any other 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, geographic area; (B) grants material exclusive rights in favor of any third party, including material exclusive rights to market, sell or deliver any Company Product; (C) contains any exclusivity, material “most favored nation” or similar provisions, obligations or restrictions material provision in favor of the counterparty for a Company Product; or (CD) contains a right of first refusal, first offer or first negotiation or any other provisions restricting or purporting similar right with respect to restrict the ability of the Company or its Subsidiaries to sellany material asset owned by an Acquired Company, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerexcept, in each case, in for any material respect or such Contract 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) may be cancelled without penalty by the Company Acquired upon notice of sixty (60) days 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 each Company Contract requiring for the Company marketing, sale, licensing or its Subsidiaries to guarantee the Liabilities distribution of any Person Company Product under which payments in excess of $5,000,000 were made to the Acquired Companies, as a whole, in the fiscal year ended December 31, 2023, or are reasonably expected to be made to the Acquired Companies in the fiscal year ended December 31, 2024;
(other than viii) each Company Contract for the purchase, sale or lease of goods or services (including contract manufacturing), materials, supplies or equipment, under which payments in excess of $5,000,000 were made by the Acquired Companies, as a whole, in the fiscal year ended December 31, 2023, or are reasonably expected to be made by the Acquired Companies in the fiscal year ended December 31, 2024;
(ix) each Company or a Subsidiary) or Contract pursuant to which any Person an Acquired Company has continuing obligations or interests involving (other than A) milestone or similar payments, including upon the Company achievement of regulatory or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarycommercial milestones, in each case in excess of $200,0003,000,000 of future payments in the aggregate, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company, in each case in excess of $3,000,000 of future payments in the aggregate;
(viiix) each settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on any Acquired Company or 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 $2,500,000 in the aggregate following the date of this Agreement;
(xi) any Company Contract (A) pursuant to which an Acquired Company grants a third party a license, covenant not to sue or other similar right under any material Company IP, other than non-exclusive licenses granted to customers, distributors, resellers, or Acquired Company service providers in the ordinary course of business, (B) pursuant to which a third party grants an Acquired Company a license, covenant not to sue or other similar right under Intellectual Property Rights material to the Acquired Companies’ businesses, taken as a whole, other than non-exclusive licenses of generally commercially available Intellectual Property Rights (including for off-the-shelf software), or (C) pursuant to which any Intellectual Property Rights material to the business of the Acquired Companies, taken as a whole, have been developed on behalf of the Acquired Companies, other than by (1) employees or (2) contractors who assigned all of their right, title and interest in and to such Intellectual Property Rights to one or more of the Acquired Companies;
(xii) each Company Contract with any Governmental Entity reasonably expected to involve payments to the Company exceeding $2,500,000 during the twelve (12) months ended December 31, 2024;
(xiii) each Company Contract that is a collective bargaining agreement or other Contract with any labor union, labor or trade organization, works council or other employee representative body;
(xiv) each material stockholders’, investors rights’, registration rights or similar Contract to which the Company or its any Subsidiary of the Company is a party (other than the organizational documents of wholly owned Subsidiaries hasof the Company);
(xv) each Contract with or binding upon the Company, directly any Subsidiary of the Company or indirectlyany of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xvi) each hedging, made derivative or agreed similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to make protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices);
(xvii) any loan, advance, or assignment Company Contract relating to (A) a financial guaranty of payment to any Person outside by any Acquired Company or (B) the incurrence of indebtedness of the Ordinary Course Acquired Companies for borrowed money, in each case, in excess of Business or$5,000,000 (whether outstanding or as may be incurred thereunder) (other than any such indebtedness owed to (and any financial guaranty of indebtedness by an Acquired Company in favor of) another Acquired Company); and
(xviii) the Leases. Each Contract of the type described in this Section 3.12(a) is referred to herein as a “Material Contract.”
(b) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, in an amount in excess a Company Material Adverse Effect, as 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 is valid, binding and enforceable in accordance with its terms against each Acquired Company which is a party thereto, subject to the Company Enforceability Exceptions and assuming the validity, binding nature and enforceability against the counterparty or its Subsidiaries counterparties thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto. As of the counterparties thereto (subject date of this Agreement, except as has not had, and would not reasonably be expected to applicable bankruptcyhave, insolvencyindividually or in the aggregate, reorganizationa Company Material Adverse Effect, moratorium or other Laws affecting generally none of the enforcement of creditors’ rights and subject to general principles of equity)Acquired Companies, (ii) the Company or its Subsidiaries and, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach ofno other Person, has violated or breached, or committed any default under, any Material Contract under (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 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
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
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
Sources: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition 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
Sources: Merger Agreement (Quality Care Properties, Inc.), Merger Agreement (Welltower 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 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 ▇▇▇▇▇’▇ 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
Sources: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Material Contracts. (a) Section 3.13(a) of Except for this Agreement, the Company Disclosure Schedule contains a listing of all Contracts described in clauses Benefit Plans, the Company Real Property Leases, the Company Subleases and agreements filed as exhibits to the Company SEC Documents (i) through (xiii) below including those that are filed with the SEC at any time prior to whichthe date hereof and incorporated by reference thereto), as of the date of this Agreement, neither the Company or 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 to Indebtedness for borrowed money “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 SubsidiariesSEC);
(ii) any Contract under with any Top Company Customer or Top Company Vendor pursuant to which material payments are to be made or received by the Company or any of its Subsidiaries is lessee or material obligations of the Company or holds or operatesany of its Subsidiaries will remain outstanding after 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 $500,000with respect to commercial product Warranties on customary terms;
(iii) any Contract under which the Company or any of its Subsidiaries is lessor of has continuing indemnification, earnout or permits similar obligations to or by any third party person which are material to hold or operatethe Company and its Subsidiaries, in each casetaken as a whole, any tangible property (other than real property)those entered into on customary terms in connection with the distribution, owned sale or controlled by license of the Company’s products in the Ordinary Course of Business and other than any such Contracts that may be cancelled without liability to the Company or its Subsidiaries, except for any lease Subsidiaries upon notice of 90 days or agreement under which the aggregate annual rental payments do not exceed $200,000less;
(iv) any Contract concerning the acquisition or divestiture of any entity or any business (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research all or development Contractsubstantially all of the assets of any entity or any business), or similar Contract, in each case, which requiresany investment in, or would reasonably be expected to require (based on acquisition or divestiture of any occurrencesecurity of, developmentany entity, activity or event contemplated by such Contract), aggregate payments to or from the Company or any of its Subsidiaries in excess under which the Company or any of $1,000,000 over the life of the Contract or (B) other Contract with respect to its Subsidiaries has any material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)continuing obligations;
(v) any Contract that (A) limits for capital expenditures involving payments of more than $4,000,000 individually or purports to limit$8,000,000 in the aggregate, in any material respect, the freedom by or on behalf of the Company or any of its Subsidiaries, for which reserves have not already been established in the financial statements of the Company and its Subsidiaries;
(vi) any Contract which is material to the operations of the Company and its Subsidiaries, taken as a whole, involving a joint venture or strategic alliance or partnership agreement or other sharing of profits or losses with any person;
(vii) any Contract relating to indebtedness for borrowed money in an amount in excess of $5,000,000 individually;
(viii) any Contract with any Top Company Customer or Top Company Vendor containing any, or, to the knowledge of the Company, any other material Contract containing any material, covenants, commitments, or other obligations by the Company or any of its Subsidiaries (A) not to compete with any person in a line of business or activity, (B) not to engage or compete in any line of business or with any Person or activity in any area geographic location in a line of business, activity or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closinggeographic location, (BC) contains granting any exclusivityexclusive rights to any third party, (D) including “take or pay,” “sole source” or “requirements” obligations, (E) granting any “most favored nationpricing” or similar provisionsterms to any third party, obligations or restrictions or (CF) contains any other provisions restricting otherwise prohibiting or purporting to restrict limiting the ability right of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test distribute or research products, directly manufacture any products or indirectly through third parties, services or to solicit purchase or otherwise obtain any potential employee software, components, parts or customersubassemblies, in each case, in other than any such Contracts (x) that may be cancelled without material respect or that would so limit or purports liability to limit, in any material respect, Parent the Company or any of its Affiliates after the Closing;
Subsidiaries upon notice of 180 days or less, or (viy) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by which are not material to the Company or and 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 Subsidiaries, 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 $200,000;
(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 Personwhole;
(ix) any Contract disclosed or required to be disclosed on Section 3.19 3.20(g) of the Company Disclosure ScheduleLetter;
(x) any Contract with any Person Order or settlement or conciliation agreement entered into since January 1, 2018, other than (A) pursuant to which releases immaterial in nature and 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 which would not require the Company or its Subsidiaries grants to any Person any right pay consideration in excess 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$2,000,000;
(xi) any Contract for the disposition of any portion of the assets evidencing an outstanding loan, advance or business of the Company or its Subsidiaries or for the acquisition investment 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 or in, any payment person (other than the Company or incur any Liability as a result other Subsidiary of the consummation Company) of more than $5,000,000 in the transactions contemplated by this Agreementaggregate (excluding trade receivables and advances to employees for normally incurred business expenses, termination each arising in the Ordinary Course of employment Business);
(xii) each Material Government Contract (excluding any Government Contracts with universities or bothsimilar institutions on customary and reasonable terms); and
(xviixiii) any other Contract the performance of not described above and pursuant to which requires either (A) annual payments to or from the Company or any of its Subsidiaries has paid or received payments in excess of $300,000 5,000,000 in the most recent fiscal year, or (B) aggregate is obligated to pay or entitled to receive payments to or from the Company or its Subsidiaries in excess of $1,500,000 over 5,000,000 in the life of 12-month period following the agreement anddate hereof, in each case, that is not terminable by other than (A) Contracts solely between the applicable Company and a wholly owned (direct or indirect) Subsidiary of the Company or its solely between wholly owned (direct or indirect) Subsidiaries without penalty upon less than thirty of the Company, (30B) days’ prior written notice.
Contracts with customers, suppliers, vendors, or third-party service providers entered into in the Ordinary Course of Business on reasonable terms or (C) Government Contracts. Each contract of any of the types referred to in clauses (i) Each through (xiii) above in existence as of the date of this Agreement is referred to herein as a “Company Material Contract.”
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, 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, and (ii) each Company Material Contract is a valid and binding on obligation of the Company or its Subsidiaries, as applicablethe Subsidiary of the Company that is party thereto and, to the knowledge of the Company’s Knowledge, 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, 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)Remedies Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Ii-Vi Inc), Merger Agreement (Coherent Inc)
Material Contracts. As of the date hereof, except as set forth in Section 3.13 of the Nestle Disclosure Schedule, none of the NICC Entities is a party to or bound by any (a) Section 3.13(aagreement with a distributor which is not terminable on one year's (or less) notice; (b) material joint venture or similar contract or agreement; (c) contract which is terminable by the other party or parties thereto upon a change of control of any 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 boundNICC Entities, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to such contracts the termination of 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 ornot, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on the NICC Entities; (d) contract or agreement not terminable upon one year's (or less) notice that limits or purports to limit the ability of any of the NICC Entities or any Affiliates of an NICC Entity to compete in an amount any material line of business or in any material geographic area; (e) any material contract or agreement between or among one or more NICC Entities on the one hand and Nestle or any Continuing Affiliate or any officer or director of any of the NICC Entities on the other hand; or (f) other contract, agreement or arrangement, entered into other than in the ordinary course of business, involving estimated future commitments in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract 15 million. The contracts required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant so listed are 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 herein as "NICC Material Contracts." 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)all NICC Material Contracts, 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 none of the NICC Entities, Nestle or any Continuing Affiliate, nor, to Nestle's or NICC's knowledge, any other party to any such Business Material Contract is valid and binding on the Company in breach thereof or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretodefault thereunder, 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 there does not in material breach of, or default underexist under any provision thereof, any Material Contract and (iii) no event has occurred that (that, with or without due the giving of notice or the lapse of time or both, would constitute such a breach or default, except for such breaches, defaults and events which in the case of clauses (i) and (ii) would result not, individually or in the aggregate, have or reasonably be expected to have a material breach ofadverse effect on the NICC Entities. Section 3.13 of the Nestle Disclosure Schedule lists, 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, each note, mortgage, indenture and other obligation and agreement and other instrument for or relating to any lending or borrowing (other than purchase orders, invoices, and similar confirmatory including assumed or administrative documents that guaranteed debt) of $10 million or more effected by any NICC Entity or to which any properties or assets of any of the NICC Entities 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)subject.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) Schedule 3.26 delivered to STC by Epitope 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 Epitope or its Subsidiaries any Epitope Subsidiary is a party or by which they are boundEpitope or any Epitope Subsidiary is bound or under which Epitope or any Epitope Subsidiary has or may acquire any rights, which were not filed prior to the date hereof as exhibits to Epitope Commission Filings, which involve or relate to (i) obligations of Epitope or any Epitope Subsidiary for borrowed money or other indebtedness where the amount of such obligations exceeds $250,000 individually, (ii) the lease by Epitope or any Epitope Subsidiary, as lessee or lessor, of real property for rent of more than $250,000 per annum, (iii) the purchase or sale of goods (other than a Company Benefit Plan, and raw material to be purchased by Epitope on terms that are customary and consistent with the past practice of Epitope and in amounts and at prices substantially consistent with past practices of Epitope) or services with an aggregate minimum purchase price of more than $250,000 per annum, (iv) rights to manufacture and/or distribute any product which accounted for more than $250,000 of the consolidated revenues of Epitope and its Subsidiaries during the fiscal year ended September 30, 1999 or under which Epitope or any Epitope Subsidiary received or paid license or other fees in excess of $250,000 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 $250,000, (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 ScheduleEpitope or of any of Subsidiary of Epitope 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 Epitope; (ivii) any Contract relating material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of Epitope or any Subsidiary of Epitope (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; or consulting Contract with severance(x) individual capital expenditures or commitments in excess of $250,000. All such contracts and agreements are duly and validly executed by Epitope or such Epitope Subsidiary, change and are in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or full force and effect. Neither Epitope nor any of its Subsidiaries to make has violated or breached, or committed any payment default under, any contract or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementagreement, 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 Epitope, 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 Epitope 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 Epitope or any Subsidiary of Epitope 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 Epitope 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 1 contract
Sources: Merger Agreement (Epitope Inc/Or/)
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
Sources: Business Combination Agreement (Cambridge Capital Acquisition Corp)
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(a4.9(a) of the Company Disclosure Schedule contains sets forth a listing list of all of the following types of Contracts described in clauses to which the Acquired Company is a party:
(i) through (xiii) below to which, as each Contract with any Related Party of the date Acquired Company which will not be terminated at or prior to Closing;
(ii) each Contract with the six (6) largest customers of this Agreementthe Acquired Company based on revenue of the Acquired Company during fiscal year 2017;
(iii) any non-competition Contract or other Contract that purports to limit in any material respect the ability of the Acquired Company from competing, operating or doing business in any location or in any line of business;
(iv) any employment (other than at-will employment agreements or offer letters), consulting, or severance agreement pursuant to which the Acquired Company would reasonably be expected to make payment in excess of $100,000 in 2017 or its Subsidiaries any year thereafter;
(v) any Contract (excluding non-exclusive licenses for commercial off-the-shelf computer software and Contracts with which Buyer is a party or by otherwise bound) to which they are bound, other than the Acquired Company is a Company Benefit Plan, party or otherwise bound and that are not expired or have not been terminated and not including any Contracts pursuant to which the Acquired Company has (A) obtains the exclusive right to use any material Intellectual Property necessary to the operations of the business of the Acquired Company as currently conducted or (B) grants the exclusive right to use any material Intellectual Property necessary to the operations of the business of the Acquired Company as currently conducted;
(vi) any joint venture or revenue sharing Contract;
(vii) any Contract relating to Indebtedness of the Acquired Company;
(viii) any Contract containing “most favored nation” provisions;
(ix) any Contract with no a Governmental Entity; and
(x) any other Contract that is material outstanding to the Acquired Company.
(b) The Contracts set forth on Section 4.9(a) of the Disclosure Schedule (or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a4.9(a)) of the Company Disclosure Schedule, are collectively referred to as the “Material Contracts”). TrueNeither the Acquired Company nor, correct and complete copies to the Knowledge of the Contracts listed on Section 3.13(a) Sellers, any other party thereto, is in violation of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) default under 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 Lien) on any material assets those violations or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesdefaults that have not had, 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 and 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 occurrencehave, development, activity or event contemplated by such Contract), aggregate payments to or from a Material Adverse Effect. To the Company or its Subsidiaries in excess of $1,000,000 over the life Knowledge of the Sellers, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or (B) result in a termination thereof or would cause or permit the acceleration 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 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 changes of any Person (other than right or obligation or 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 loss 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 noticebenefit thereunder.
(ic) Each Material Contract is a valid and binding on agreement of the Company or its Subsidiaries, as applicable, to the Acquired Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in all material respects (except to the extent such Material Contract terminates or expires after the date hereof in accordance with its terms terms), and is enforceable against the Acquired Company or its Subsidiaries and, to the Company’s KnowledgeKnowledge of the Sellers, the counterparties thereto each other party thereto, in accordance with its terms, except (subject to applicable i) as limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance or other similar Laws affecting generally the enforcement of relating to creditors’ rights and subject to generally or (ii) as limited by 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 whether such enforceability is considered in a material breach of, proceeding in equity 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)at Law.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Amneal Pharmaceuticals, 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 1 contract
Sources: Merger Agreement (Exxon Mobil Corp)
Material Contracts. (a) Section 3.13(a) Schedule 2.12 of the Company Disclosure Schedule contains a listing Schedules lists each of all the following written Contracts (such Contracts described in clauses (ithis Section 2.12 being “Material Contracts”) through (xiii) below to which, as which the Seller or any 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) all Contracts that provide for payment or receipt by the Seller or any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to in connection with the placing Business of a Lien (other more than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
US$300,000 per year; (ii) any Contract under which all Contracts that limit or purport to limit 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 ability of the Contract or (B) other Contract with respect Business 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 geographic area or that would so limit or purport to limitduring any period of time; (iii) all joint venture, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” partnership or similar provisions, obligations or restrictions or Contracts; and (Civ) 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 Contract 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) is believed by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over Seller to be material to 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 Business, 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 $200,000;
(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 orwhole. Except as would not, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toreasonably be expected to have a 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 Seller and its Subsidiaries, Subsidiaries (as applicablethe case may be) and, to the Company’s KnowledgeKnowledge of the Seller, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against effect. Except as requested by Buyer or as otherwise contemplated by this Agreement or the Company or its Subsidiaries andSchedules hereto, to the Company’s KnowledgeKnowledge of Seller, as of the date hereof, no customer, supplier, employee or other Person who is a counter-party to a Material Contract has informed the Seller that it intends to terminate or modify its business relationship with the Business, the counterparties thereto (subject result of which would reasonably be expected to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally have a Material Adverse Effect. Neither the enforcement Seller nor 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 is in material breach of, or default under, any Material Contract to which it is a party, except for such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Seller has made available to Buyer copies of the South Korean supply agreements between SCM Microsystems (Asia) Pte Ltd and (i) CJ Cablenet dated May 20, 2004, (ii) Korean Digital Cable Media Center Co., Ltd. dated June 1, 2005, and (iii) no event has occurred that Qrix Networks, Inc. dated March 17, 2005 (with or without due notice or lapse together, the “Korean Contracts”), which agreements are included in the definition of time or both“Contracts” pursuant to Section 1.1(a) would result in a material breach of, or default under, any Material Contract and constitute “Transferred Assets” hereunder. The Korean Contracts are governed by Singapore law and none of the Company or Korean Contracts contain specific prohibitions against the assignment of the rights and benefits of Seller and its Subsidiaries or, under such supply agreements nor any express requirement that Seller shall obtain the prior consent of the relevant contract counter-party to such agreement. To the knowledge of Seller and subject to an exception relating to the Company’s Knowledgeperformance of personal services, which Seller does not believe is applicable to the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Korean Contracts, Singapore common law generally allows the assignment of the date hereof (other than purchase orders, invoices, rights and similar confirmatory or administrative documents that are ancillary to benefits under an agreement in the main contractual relationship between the parties to absence of 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)specific prohibition against assignment.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a2.14(a) of the Company Sellers 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, which an Acquired Company is a party as of the date of this Agreement, the Company or its Subsidiaries is a party Agreement 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 ScheduleAssets is bound (collectively, with the IP-Licenses, the “Material Contracts”). True, correct excluding any Employee Benefit Plans, Leases 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):that are Excluded Assets:
(i) any Contract relating to Indebtedness for borrowed money all Contracts that involve the expenditure or receipt of the Company or its Subsidiaries or to the placing of a Lien (more than $150,000 annually, other than a Permitted Lien) on any material assets purchase orders for inventory and sale of products 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 services in the Ordinary Course of Business;
(ii) all Contracts required to be listed pursuant to Section 2.13(k);
(iii) all Contracts related to Indebtedness in a principal amount greater than $150,000, including the incurrence, assumption or guarantee of any Indebtedness of any Acquired Company, or any other Person;
(iv) all Contracts that: (A) contain a non-competition or non-solicitation covenant by any Acquired Company with respect to the Business or in any geographical area in the world restricting the development, manufacture, marketing or distribution of any Acquired Company’s products or services; or (B) grant exclusivity of the marketing, distribution or sale of any of the Acquired Company’s products to any Person or otherwise grants exclusivity to any Person;
(v) all Contracts that require any Acquired Company to purchase a minimum amount or specified amount of its total requirement for any product or service from a third party;
(vi) all vendor or customer Contracts to which any Acquired Company is a party pursuant to which the Acquired Company has received or paid during the immediately preceding calendar year aggregate payments in excess of $150,000, other than purchase orders for inventory and sale of products or services in the Ordinary Course of Business;
(vii) all Contracts pursuant to which any Acquired Company is a franchisor or franchisee, or otherwise relating to a franchise;
(viii) all Contracts under which any Acquired Company has made an advance (other than in the Ordinary Course of Business) or loan to any other Person in a principal amount greater than $200,000 that is currently outstanding;
(ix) all Contracts concerning the sale or acquisition (by merger, purchase or sale of assets or stock or otherwise) of a business or a portion thereof entered into during the last three years or pursuant to which there are any continuing obligations with respect to indemnification, other than the sale or acquisition of inventory or immaterial amounts of personal property and equipment in the Ordinary Course of Business;
(x) all Contracts that provide for capital expenditures or (other than in the Ordinary Course of Business) acquisition of machinery, equipment or other personal property (excluding inventory and materials related thereto) in excess of $250,000 on an annual basis;
(xi) all Contracts granting to any Person (other than an Acquired Company) an option or a right of first refusal, first-offer or similar preferential right to purchase or acquire any ownership interests or material Assets;
(xii) all Contracts requiring the disposition of any Assets material to the ongoing operation of the Business other than sales of inventory in the Ordinary Course of Business;
(xiii) all joint venture, limited partnership or similar agreements to which an Acquired Company or its Subsidiaries is a party;
(xiv) all Contracts under which an Acquired Company has any continuing obligation with respect to an “earn-earn out,” contingent purchase price price, or other similar contingent or deferred payment obligation;
(xiixv) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with all Contracts to which 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 yearBody is a party;
(xvi) any employment all Contracts that guarantee the obligations of service providers, vendors, officers, directors, employees, Affiliates 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 bothothers; 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 all Contracts of the agreement andnature listed in clauses (i) – (xvi) above that require a consent to, or otherwise contain provisions providing rights of termination or material modification in each caseconnection with, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticea “change of control.”
(i) Each Material Contract is valid legal, valid, binding and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, enforceable and is in full force and effect and enforceable against an Acquired Company; (ii) no Acquired Company or, to Sellers’ Knowledge, any other party thereto, is in accordance with its terms against the Company breach or its Subsidiaries default in any material respect and, to the Company’s Sellers’ 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 (which with or without due notice or lapse of time (or both) would result in constitute such a material breach of, or default underor permit, termination modification or acceleration, under any Material Contract; and (iii) as of the date hereof no Acquired Company has received written notice that any party to a Material Contract by the Company intends to cancel, not renew or its Subsidiaries orterminate such Material Contract or to exercise or not exercise any option under such Material Contract and, to the Company’s Sellers’ Knowledge, the counterparties thereto. The Company has no party to a Material Contract intends to cancel, not renew or terminate such Material Contract.
(c) Sellers have made available to Parent true Buyers true, correct and complete copies of all written 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)Contracts.
Appears in 1 contract
Material Contracts. Except as set forth on the Disclosure Letter, neither the Company nor any Subsidiary is a party to any Contract:
(a) Section 3.13(a) of the Company Disclosure Schedule contains constituting a listing of all Contracts described in clauses (i) through (xiii) below to whichpartnership, as of the date of this Agreementjoint venture, the Company joint development 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 arrangement;
(iib) any Contract under which the Company limiting 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 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, engage in any material respect market or that would so limit or purports to limit, line of business in any material respect, Parent or any of its Affiliates after the Closing;
(vic) for the sale or transfer of any Contract requiring material assets of the Company or any future capital commitment or capital expenditure Subsidiary, other than sales in the ordinary course of business;
(or series of capital expendituresd) relating to the acquisition 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 Subsidiary of any Person (operating business or the material assets or capital stock of any 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 $200,000 or made any capital contribution to, or other investment in, any Person;
(ixe) relating to the incurrence, assumption, surety or guarantee of any Contract required to be disclosed on Section 3.19 of the Company Disclosure ScheduleIndebtedness;
(xf) under which there is imposed any Contract with material Encumbrance on the Company, any Person Subsidiary or the assets or properties thereof;
(A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bg) under which the Company or its Subsidiaries grants any Subsidiary leases personal property from or to any Person any right third parties having aggregate payments in excess of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property$(Redacted – commercially sensitive) per year;
(xih) 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 Subsidiary is obligated to an “earn-out,” contingent purchase price or indemnify any Person other contingent or deferred payment obligationthan in the ordinary course of business;
(xiii) any settlement, conciliation or similar Contract (A) requiring monetary payments by under which the Company or its Subsidiaries any Subsidiary has made or is required to make any advances or loans to any Person;
(j) that expires more than one year after the effective 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, Agreement 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 which has aggregate payments in excess of more than $500,000 (Redacted – commercially sensitive) per year;
(xvik) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) require payments 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 Subsidiary in excess of $300,000 (Redacted
(l) contains restrictions with respect to the payment of dividends or (B) aggregate payments to or from any other distributions in respect of any of the capital stock of the Company or any Subsidiary;
(m) that consists of a shareholders', buy-sell, put-call or other similar type of agreement;
(n) With any Vendor, or any of its Subsidiaries in excess of $1,500,000 over the life officers or directors or Affiliates of the agreement andforegoing Persons, other than salaries and other employment compensation and benefits payable 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.ordinary course and disclosed to GABY; or
(io) Each Material Contract is valid That requires the purchase of all or substantially all of its requirements of a particular product from a supplier. Complete 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 as each of the date hereof Contracts required to be described in the Disclosure Letter pursuant to this Section 3.02(26) (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary "Material Contracts") have been provided 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)GABY.
Appears in 1 contract
Sources: Share Purchase Agreement
Material Contracts. (a) Section 3.13(aExcept as set forth on Schedule 3.18(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedules, as of the date of this Agreement, neither the Company or nor any of its Subsidiaries is a party to or is 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 Contract of the Company has with no material outstanding or executory obligations or Liabilities following nature (such Contracts as are required to be set forth on Section 3.13(aSchedule 3.18(a) of the Company Disclosure Schedule, the Schedules 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 Contract relating to Indebtedness (or multiple Contracts with the same counterparty, for borrowed money which payments shall be aggregated for purposes of this clause (i)) (A) for the purchase of goods or services by 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 that by its terms requires the Company or any such Subsidiary to make payments in excess of $250,000 in 2017 or in any calendar year thereafter and (B) for the sale of goods or services by the Company or any of its SubsidiariesSubsidiaries to any customer 36 listed on Schedule 3.22(a) of the Disclosure Schedules, if in each case such goods or services have not been fully delivered or performed as of the date hereof;
(ii) any Contract under by which the Company or any of its Subsidiaries is lessee has outstanding Indebtedness in excess 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 $500,000100,000;
(iii) any Contract under pursuant to which the Company or any of its Subsidiaries is lessor has made any loan, capital contribution or other investment in, or assumed, guaranteed or agreed to act as surety for, any liability or obligation of or permits any third party to hold party, including take-or-pay contracts or operatekeepwell agreements, 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 $200,000100,000;
(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 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)Governmental Authority;
(v) any Contract that (A) limits or purports to limit, in with any material respect, the freedom Related Party 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, Subsidiaries (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 than Contracts between the Company or and 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 ClosingSubsidiaries);
(vi) any employment Contract requiring any future capital commitment or capital expenditure Contract with an individual consultant, that by its terms (or series of capital expendituresA) by obligates the Company or any of its Subsidiaries to make payments of more than $100,000 in an amount 2017 or in excess of (A) $300,000 annually any single year thereafter, or (B) $1,000,000 over the life is not terminable, or will not expire, in each case without penalty or further payment, within 12 months of the agreementdate hereof;
(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 that (A) pursuant to which restricts 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) ability of the Company or any of its Subsidiaries to make compete with any payment Person in any geographic area or incur any Liability as line of business, or (B) restricts the right of the Company and its Subsidiaries to sell to or purchase from any Person or to hire any Person;
(viii) any Contract that grants the counterparty or any third party “most favored nation” status or any similar type of best pricing term;
(ix) all Real Property Leases;
(x) any Contract that requires a result consent to or otherwise contains a provision relating to a “change of control,” or that would prohibit or delay the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of any tangible personal property that, by its terms, requires the Company or any of its Subsidiaries to make or receive lease payments in excess of $100,000 in 2017 or any calendar year thereafter;
(xii) any Contract for the sale or purchase of any real property, or for the sale or purchase of any tangible personal property (other than sales of inventory to customers of the Company or any Subsidiary), in each case, that, by its terms, requires the Company or any of its Subsidiaries to make or receive payments in excess of $100,000 in 2017 or any calendar year thereafter; 37
(xiii) any Contract under which the Company or any of its Subsidiaries has material indemnification obligations to any Person with respect to liabilities relating to the Company or any of its Subsidiaries, other than Contracts entered into in the ordinary course of business;
(xiv) any (A) Inbound License Agreement (excluding any Inbound License Agreements for Off-the-Shelf Software), (B) Outbound License Agreement, termination or (C) Contract that expressly limits the Company’s rights to use, or enforce or register any Company Registered IP, including covenants not to ▇▇▇ and coexistence agreements;
(xv) any joint venture or partnership Contract to which the Company or any of employment its Subsidiaries is a party, or both; andany merger, asset or stock purchase or divestiture Contract relating to the Company or any of its Subsidiaries under which the Company or any of its Subsidiaries continues to have any material obligations, including any indemnity or “earn-out” obligations;
(xvi) any Contract with any labor union;
(xvii) any hedging, futures, options or other similar derivatives Contract;
(xviii) any Contract for the performance purchase of which requires either (A) annual payments to any debt or from equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of the Company 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 andSubsidiaries, in each case, that is not terminable by the applicable (A) under which the Company or any of its Subsidiaries has any material outstanding obligations, and (B) other than any of the Organizational Documents of any of the Seller, the Company, or any of the Company’s Subsidiaries;
(xix) any settlement agreement with respect to any Actions entered into since January 1, 2014;
(xx) any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries and that relates to the Company, any such Subsidiary or any of their respective businesses; and
(xxi) any other Contract (except for any Contract with a customer or supplier identified on Schedule 3.22(a) of the Disclosure Schedules and Schedule 3.22(b) of the Disclosure Schedules), whether or not made in the ordinary course of business that (A) by its terms requires the Company or any of its Subsidiaries to make or receive any payment (1) in excess of $200,000 annually in 2017 or any calendar year thereafter, or (2) in excess of $500,000 over the remaining Contract term, and (B) has a term greater than one year and cannot be cancelled by the Company or any of its Subsidiaries without penalty upon less or further payment and without more than thirty (30) 90 days’ prior written notice.
(b) Except as set forth on Schedule 3.18(b) of the Disclosure Schedules, (i) Each each Material Contract is valid legal, valid, and binding on the Company or one of its SubsidiariesSubsidiaries thereof, as applicable, and is enforceable against the Company or the applicable Subsidiary and, to the Company’s KnowledgeKnowledge of the Seller, the counterparties each other party thereto, and is in full force and effect effect, except where the failure to be so would not adversely affect in any material respect the Company and enforceable in accordance with its terms against Subsidiaries, taken as a whole; (ii) neither the Company or any of its Subsidiaries andnor, to the Company’s KnowledgeKnowledge of the Seller as of the date of this Agreement, the counterparties any other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium is 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 (iii) no 38 event has occurred that (with or without due notice or lapse of time or both) would result in constitute a material breach of, or default under, any Material Contract by Contract, nor has the Company or any of its Subsidiaries orreceived any claim alleging that there currently exists any such breach, to violation or default; and (iii) the Company’s Knowledge, the counterparties thereto. The Company Seller has delivered or made available to Parent the 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 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 whichExcept for this Agreement, as of the date of this AgreementJuly 20, 2020, neither the Company or 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 that would be required to Indebtedness for borrowed money of be filed by the Company or its Subsidiaries or to as a “material contract” under Item 601(b)(10) of regulation S-K under the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesSecurities Act;
(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), solely among direct or indirect wholly owned by any other Person, except for any lease or agreement under which Subsidiaries of the aggregate annual rental payments do not exceed Company) relating to Indebtedness in a principal amount that exceeds of $500,000750,000;
(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 $200,000Labor Agreement;
(iv) any (A) joint ventureContract with a Governmental Entity that is a settlement, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractconciliation, or similar Contract, in each case, which requires, agreement or would reasonably be expected to require (based on that imposes any occurrence, development, activity material monetary or event contemplated by such Contract), aggregate payments to or from other material obligation upon 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)after July 20, 2020;
(v) any Contract with a Material Customer or Material Supplier that (A) limits or purports to limit, limit in any material respectrespect either the type of business in which the Company or its Subsidiaries (or, after the freedom Effective Time, Parent or its 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 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 limitor, in any material respectafter the Effective Time, the operations of Parent or any of its Affiliates after the ClosingSubsidiaries, (BC) contains any exclusivity, grants “most favored nation” or similar provisionsstatus that, obligations or restrictions following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or (CD) contains any other provisions restricting prohibits or purporting to restrict limits the ability rights of the Company or any of its Subsidiaries to sellmake, manufacture, develop, commercialize, test sell or research products, directly distribute any products or indirectly through third partiesservices, or to solicit any potential employee use, transfer or customerdistribute, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or enforce any of its Affiliates after the Closingtheir rights with respect to, any of their material assets;
(vi) any Contract requiring any future capital commitment that materially affects the use or capital expenditure (or series of capital expenditures) enforcement by the Company or its Subsidiaries of any material Intellectual Property Rights owned by the Company or its Subsidiaries (including such settlement agreements, covenants not to assert, and consents to use), excluding any Contracts that are non-exclusive to the Company and entered into in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementOrdinary Course;
(vii) any Contract requiring the Company with any Material Customer 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 $200,000Material Supplier;
(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 obligates the Company or any of its Subsidiaries to make any payment future capital commitment or incur capital expenditures in excess of $2,000,000;
(ix) any Liability as a result Contract to which any of the consummation Company’s or its Subsidiaries’ directors or officers are a party (other than Company Benefit Plans);
(x) any Contract that relates to the formation, creation, governance or control of, or the economic rights or obligations of the transactions contemplated Company or any of its Subsidiaries in, any joint venture, limited liability company, partnership or other similar arrangement;
(xi) any Contract entered into in the last three (3) years that relates to the acquisition or disposition of any business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) (a) pursuant to which any earn-out or deferred or contingent payment obligations remain outstanding, (b) relating to the disposition or acquisition of assets by the Company or any of its Subsidiaries with a value greater than $5,000,000 other than the disposition of assets in the Ordinary Course, (c) pursuant to which the Company or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, or (d) pursuant to which a claim for indemnification may still be made against the Company or any of its Subsidiaries;
(xii) any Contract with a Governmental Entity under which the Company or any of its Subsidiaries received payments in excess of $2,000,000 during the 12-month period ending March 30, 2020, other than non-exclusive licenses to customers in the Ordinary Course;
(xiii) any Contract outside the Ordinary Course that would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries of $2,000,000 or more per any twelve month period not otherwise covered by the other clauses of this Agreement, termination Section 5.17(a);
(xiv) any Contract under which it is a licensee of employment or bothis otherwise granted by a third party any rights to use any Intellectual Property Rights (other than non-exclusive end user licenses of commercially-available Software used solely for the Company’s internal use) that involves payments by the Company or any of its Subsidiaries of $250,000 or more per any twelve month period;
(xv) any Contract under which it is a licensor or otherwise grants to a third party any rights to use any Intellectual Property Rights (other than Intellectual Property Rights licensed to customers on a non-exclusive basis in the Ordinary Course); and
(xviixvi) any other Contract or group of related Contracts that, individually or in the performance of which requires either aggregate, if terminated or subject to a default by any party thereto, would have or would reasonably be expected to have a Material Adverse Effect (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 each Contract constituting any of the agreement andforegoing types of Contract described in clauses (i)–(xv), in and including all amendments, exhibits and schedules to each casesuch Contract from time to time, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticea “Material Contract”).
(ib) Each A copy of each Material Contract has been made available to Parent. Unless otherwise disclosed, each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, 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, except 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 have a Material Adverse Effect. There is no material breach of, or default under, under any such 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 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 orders, invoicesparty thereto, and similar confirmatory no material event has occurred that with the lapse of time or administrative documents that are ancillary the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, or, to the main contractual relationship between Knowledge of the parties to a particular Contract or group of Contracts and thatCompany, any other party thereto, in each case, do except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Since January 1, 2017, the Company has not contain received any material executory written notice that it or continuing termsany of its Subsidiaries is in default or breach of any “non-solicitation” or “no-hire” or similar provision that restricts the Company or any of its Subsidiaries from soliciting, conditionshiring, obligations engaging or rights)employing any Person’s current or former employees. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any notice challenging the validity or enforceability of any Material Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a4.11(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, but excluding any Company Benefit Plan, 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(a4.11(a) of the Company Disclosure ScheduleSchedules, together with each Contract entered into after the date of this Agreement that would be required to be set forth on Section 4.11(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, complete and correct and complete copies of the Material Contracts listed have been made available to Plum.
(i) each of the 10 largest Contracts (determined based on Section 3.13(aaggregate consideration received by the Company and its Subsidiaries thereunder) of the Company Disclosure Schedule have previously been made available to Parent or and its agents or representativesSubsidiaries for the calendar years ended December 31, together with all amendments thereto):2021 and December 31, 2022;
(iii) 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 Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;
(iiiii) 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 (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 “earnout,” contingent purchase price or other contingent or deferred payment obligation;
(iv) 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 $500,000250,000;
(iiiv) 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 $200,000250,000;
(ivvi) any (A) joint ventureContract with outstanding obligations for the sale or purchase of personal property, profit-sharing, partnership, collaboration, co-promotion, commercialization fixed 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 real estate having a value in excess of $1,000,000 over 250,000, other than sales or purchases in the life ordinary course of business consistent with past practices and sales of obsolete equipment;
(vii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Contract Company or any of its Subsidiaries in an amount in excess of (A) $250,000 annually or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)$2,500,000 over the term of the agreement;
(vviii) 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 Plum or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions restrictions, (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 each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent Plum or any of its Affiliates after the Closing;
(viix) any Contract requiring that (A) relates to (1) the licensing of, or grant of other rights under, any future capital commitment material Intellectual Property to or capital expenditure from the Company or any of its Subsidiaries, or (2) the ownership, development or series use of capital expendituresany material Intellectual Property, or (B) affects the Company’s or any of its Subsidiaries’ ability to use, enforce or disclose any material Intellectual Property in connection with the resolution of any claim or dispute related to Intellectual Property, in each case, excluding (x) nonexclusive end-user licenses for unmodified, commercially available, off-the-shelf Software that are provided in executable form only and used solely for the Company’s or its Subsidiaries’ internal business purposes with an aggregate fee of less than $250,000, and (y) nonexclusive licenses granted by the Company or any of its Subsidiaries to customers or suppliers in an amount in excess the ordinary course of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementbusiness consistent with past practice;
(viix) 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 any Person (other than the Company or a Subsidiaryany of its Subsidiaries) has guaranteed the Liabilities of a the Company or a Subsidiaryany of its Subsidiaries, in each case in excess of $200,000250,000;
(viiixi) any Contract Contract, other than in respect of intragroup transfers solely between the Company and/or its Subsidiaries, 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 person outside of the Ordinary Course ordinary course of Business business or, individually or in the aggregate, in an amount in excess of $200,000 250,000 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 the performance of which would be reasonably likely to involve any payments by in excess of $250,000 in the Company or its Subsidiaries aggregate after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes or is reasonably likely to impose, at any materialtime in the future, non-monetary any material nonmonetary obligations on the Company or any of its Subsidiaries (or Parent Plum or any of its Affiliates after the Closing); and;
(xiii) each collective bargaining agreement or other any Contract with any founder or managing director of the Company Company, or its Subsidiaries, on the one hand, and any labor union, labor organization executive or works council representing employees individual service provider of the Company or its SubsidiariesSubsidiaries with annual base compensation in excess of $250,000 that (i) provides for Change of Control Payments or (ii) provides for severance, on the other handor similar payments in excess of that required by applicable Law;
(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)$250,000;
(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 any of its Subsidiaries Subsidiary in excess of $300,000 250,000 or (B) aggregate payments to or from the Company or any of its Subsidiaries in excess of $1,500,000 2,500,000 over the life term of the agreement and, in each case, that is not terminable by the applicable the Company or any of its Subsidiaries without penalty upon less than thirty (30) 60 days’ prior written notice; and
(xvii) any collective bargaining agreement or other Contract with any labor union, works council or labor organization (each, a “Labor Agreement”).
(ib) Each Except, in each case, as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, 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 (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, and (B) no party to a Material Contract by the Company has claimed a force majeure (or its Subsidiaries or, similar excuse in performance due to the Company’s Knowledge, the counterparties COVID-19) 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 January 1, 2020 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 1 contract
Sources: Business Combination Agreement (Plum Acquisition Corp. I)
Material Contracts. (a) Section 3.13(a) The Disclosure Schedules list each of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as following contracts and other agreements of the date of this AgreementSeller (or AFT-Hungary) (together with all Leases, 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 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 agreement of AFT-Hungary involving aggregate consideration in excess of Material Contract Value or requiring performance by any Contract relating to Indebtedness for borrowed money of party more than one year from the Company date hereof, which, in each case, cannot be cancelled by AFT-Hungary in question without penalty or its Subsidiaries or to the placing of a Lien (other without more than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries180 days' notice;
(ii) all agreements that relate to the sale of any Contract under which of the Company Seller’s or its Subsidiaries is lessee any assets of or holds or operatesAFT-Hungary, in each case, any tangible property (other than real property)in the ordinary course of business, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000consideration in excess of Material Contract Value;
(iii) all agreements that relate to the acquisition of any Contract under which the Company business, a material amount of stock or its Subsidiaries is lessor assets of any other Person or permits any third party to hold real property (whether by merger, sale of stock, sale of assets or operateotherwise), 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 $200,000case involving amounts in excess of Material Contract Value;
(iv) any except for agreements relating to trade payables, all agreements relating to indebtedness (Aincluding, without limitation, guarantees) joint venture, profitof AFT-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar ContractHungary, 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 having an outstanding principal amount in excess of $1,000,000 over the life of the Material Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)Value;
(v) any Contract that (A) limits all agreements between or purports to limit, in any material respect, among AFT-Hungary on 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 one hand and Seller or any Affiliate of its Affiliates after Seller (other than AFT-Hungary) on 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;hand; and
(vi) any Contract requiring any future capital commitment all collective bargaining agreements 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 agreements with any Person (A) pursuant labor organization, union or association to which the Company Seller or its Subsidiaries (or Parent or any of its Affiliates after the Closing) AFT-Hungary 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 noticeparty.
(ib) Each Material Contract AFT-Hungary 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 Contract, except for such breaches or defaults that (with or without due notice or lapse of time or both) would result in not 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 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
Sources: Securities Purchase Agreement
Material Contracts. (a) Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule contains Schedules sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue, as correct and complete list of the date of this Agreementfollowing Contracts, the including all amendments, supplements, waivers or other modifications thereto to which an Acquired 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 it or have not been terminated and not including any its assets or properties will be bound after the Closing ((the Contracts pursuant to which the Company has with no material outstanding listed or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(a) 3.11 of the Company Seller Disclosure ScheduleSchedules 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 Lease with respect 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 SubsidiariesLeased Real Property; involving rental obligations exceeding $100,000 per year;
(ii) any Contract under which with aggregate payments, or with reasonably expected aggregate payments, to or by the Acquired Group Companies more than $1,000,000 in any calendar year that cannot be cancelled by an Acquired Group Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property without material Liability upon no more than thirty (30) days’ notice (other than real propertyemployment agreements and Contracts with Payors), 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 (A) requires an Acquired Group Company to purchase its total requirements of any product or service from any other Person, (B) contains minimum quantity obligation (with respect to marketing, distribution or sale or purchase of any of the Company products or its Subsidiaries is lessor services of the Acquired Group Companies) or permits any third party to hold (C) contains “take or operatepay” or similar provisions, in each case, any tangible property case that cannot be cancelled by an Acquired Group Company without material Liability upon no more than thirty (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 $200,00030) days’ notice;
(iv) any Contract that contains a (A) joint venture“most-favored-nation” clause, 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)right of first offer;
(v) any Contract that (A) limits or purports to limit, in limit the ability of any material respect, the freedom of the Acquired Group Company or its Subsidiaries to engage or (A) compete in any line of business or with any Person or in any market or geographical 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 solicit or hire 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 Closingindividuals for employment;
(vi) any Contract requiring between an Affiliated Physician Practice, on the one hand, and the Acquired Group Companies, on the other hand (excluding any future capital commitment or capital expenditure (or series acquisition agreements entered into in connection with the acquisition of capital expenditures) the Affiliated Physician Practice by the Company Seller or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementAffiliates that have no material Liabilities outstanding);
(vii) any Contract requiring between Seller or any Affiliate of Seller, on the Company one hand, and the Acquired Group Companies, on the other hand (excluding any acquisition agreements entered into in connection with the acquisition of the Affiliated Physician Practice by the Seller or its Subsidiaries to guarantee the Affiliates that have no material 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 $200,000outstanding);
(viii) (A) any Contract under which with Top Vendors and (B) Contracts with Top Payors with respect 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 respective jurisdictions set forth on Section 3.23 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 PersonSeller Disclosure Schedules;
(ix) any Contract required requiring or otherwise relating to be disclosed on Section 3.19 any future capital expenditures (or series of such capital expenditures) by any Acquired Group Companies in excess of $100,000 individually or $250,000 in the Company Disclosure Scheduleaggregate;
(x) any Contract with relating to the creation, incurrence, assumption or guarantee of any Person (A) pursuant to which the Company Indebtedness or its Subsidiaries (or Parent or any extensions 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 Propertycredit;
(xi) any Contract for (A) entered into during the three (3) years prior to the date hereof that relates to the acquisition, disposition or assignment of any portion business or the acquisition, disposition, assignment, issuance, voting, registration, sale or transfer of the a material amount of stock or assets of any Person or a material amount of any real property (whether in a single transaction or a series of related transactions or whether by merger, sale of stock, sale of 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 otherwise) and which is binding (other than acquisitions with respect to confidentiality or dispositions made similar provisions) on an Acquired Group Company, (B) relating to the future disposition or acquisition of material assets or properties by any Acquired Group Company outside the Ordinary Course of Business, or any future merger or business combination with respect to any Acquired Group Company or (C) which contains any material outstanding obligations of any Acquired Group Company with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or material indemnification obligation;
(xii) any partnership, joint venture or other similar Contract;
(xiii) any Contract to which a Governmental Authority is a party, other than with respect to Governmental Health Programs;
(xiv) any Contract involving any resolution, conciliation or settlement of any actual or threatened Legal Proceeding against or involving any Acquired Group Company with a value in excess of $1,000,000 (A) that was entered into within the three (3) years prior to the date hereof, (B) requiring payments that have not been discharged or paid in full prior to the date hereof or (C) that provides for any ongoing injunctive or other non-monetary relief binding against such Acquired Group Company;
(xv) any Contract pursuant to which (A) an Acquired Group Company is granted a license to any Intellectual Property Rights that are material to the Aspen Business (other than licenses for unmodified, commercially available software for which the total upfront and annual fees or other payments are less than $100,000) or (B) an Acquired Group Company grants a license of any material Company Intellectual Property Rights (other than non-exclusive licenses granted to customers of the Aspen Business in the Ordinary Course of Business) or (C) any Intellectual Property Rights that are material to the Aspen Business were developed or acquired, or will be developed or acquired (other than agreements entered into with employees of the Acquired Group Companies 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 Contract providing for severance or consulting Contract with severance, change in control, transaction, retention or any similar arrangementsbonus to any Acquired Group Company Employee, that will result or officer, director or individual service provider of any Acquired Group Company with a base salary in any obligation (absolute or contingent) excess 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$450,000;
(xvii) any other Contract that is a CBA;
(xviii) any Contract that is for the performance employment or engagement of which requires either (A) any Acquired Group Company Employee, at annual payments to or from the Company or its Subsidiaries base salary in excess of $300,000 450,000;
(xix) any other Contract (other than employment agreements and offer letters or (Bindividual consulting or independent contractor agreements) aggregate payments that is reasonably likely in the Ordinary Course of Business to have an annual value of greater than $500,000, or from a value over the Company or its Subsidiaries in excess remaining term thereof of $1,500,000 over the life 1,000,000 or more, other than with Payors, healthcare facilities or employee or Benefit Plan matters; and
(xx) any commitment or arrangement to enter into any 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) Seller has made available to Buyer or its representatives copies of each Material Contract that are correct and complete in all material respects. 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 valid and binding agreement of an Acquired Group Company enforceable against such Acquired Group Company in accordance with its terms against the Company or its Subsidiaries and, to the CompanySeller’s Knowledge, the counterparties thereto other parties thereto, except as (subject i) such enforceability may be limited by the Enforceability Limitations and (ii) would not reasonably be expected to be materially adverse to the Acquired Group Companies, taken as a whole, or to prevent or materially impede, impair or delay Seller or the Acquired Group Companies from consummating the transactions contemplated by this Agreement or any Ancillary Agreement or otherwise prevent Seller or the Acquired Group Companies from performing their respective obligations hereunder and thereunder.
(c) No Acquired Group Company nor, to the applicable bankruptcySeller’s Knowledge, insolvencyany other party to any Material Contract, reorganizationis in material breach of or material default under, moratorium or other Laws affecting generally has provided or received any notice of (i) any actual or alleged default or event that with or without notice or the enforcement lapse of creditors’ rights and subject to general principles of equity)time, or both, would constitute a material default, (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in waiving any material breach of, or default under, right under any Material Contract and or (iii) no event has occurred that (with any intention to terminate, fail to renew or without due notice or lapse of time or both) would result in a material breach ofrenegotiate, or default under, cancel any Material Contract. Subject to receipt of the Consents and Permits set forth on Section 3.5(a) of the Seller Disclosure Schedules, and making of the declarations, filings and notices, referred to in Section 3.5(b), each Material Contract by will continue to remain in full force and effect after the Company or its Subsidiaries or, Closing on terms and conditions identical to those as in effect immediate prior to the Company’s KnowledgeClosing, the counterparties thereto. The Company has made available except as would not reasonably be expected 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 be materially adverse to the main contractual relationship between Acquired Group Companies, taken as a whole, or prevent or materially impede, impair or delay Seller or the parties to a particular Contract Acquired Group Companies from consummating the transactions contemplated by this Agreement or group of Contracts any Ancillary Agreement or otherwise prevent Seller or the Acquired Group Companies from performing their respective obligations hereunder and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)thereunder.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a3.16(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichLetter sets forth, as of the date of this Agreement, a true and complete list, as of the date hereof, of each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which they the Company or any of its Subsidiaries or any of their assets or businesses are boundbound (and any material amendments, supplements and modifications thereto, but excluding purchase orders and other similar documents issued in the ordinary course):
(i) Contracts with any of the top 15 largest suppliers by purchases made by the Company or any of its Subsidiaries during the 12-month period ended December 31, 2022;
(ii) Contracts concerning the establishment or operation of a legal partnership, joint venture or limited liability company;
(iii) each Contract, excluding Lease Agreements, requiring capital expenditures by the Company or any of its Subsidiaries after the date hereof in an amount in excess of $100,000;
(iv) any Contract pursuant to which a third party has licensed or granted the Company or any of its Subsidiaries any license or right to exploit any Intellectual Property Right other than (1) non-exclusive licenses for any generally commercially available products, services or Software made available on a Company Benefit Plan, and that are not expired license basis or have not been terminated and not including a software-as-a service basis or (2) Free or Open Source Software licenses;
(v) 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 Subsidiaries has granted or provided any third party any license or right to exploit any Company Intellectual Property or Company Offerings (including rights to use, distribute or resell any Company Offerings) or has agreed to or is required to provide or perform any services related to any Company Offerings, other than (1) non-disclosure Contracts entered into in the Closingordinary course of business consistent with past practice that do not contain an express license to any Company Owned Intellectual Property other than the use of the information and content disclosed thereunder for the limited purpose stated therein, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C2) contains Contracts with third party service providers or partners containing a non-exclusive license to any other provisions restricting Company Owned Intellectual Property or purporting Company Offerings solely for the purpose of providing or performing services to restrict the ability or on behalf 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 ClosingCompany;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) all Contracts containing a grant by the Company or any of its Subsidiaries of any immunity, release, or covenant not to sue or not to assert claims, in an amount in excess of (A) $300,000 annually each case with respect to any Company Owned Intellectual Property, including any concurrent use agreement, settlement agreement, pre-rights declaration or (B) $1,000,000 over the life of the agreementco-existence agreement with respect to any Company Owned Intellectual Property;
(vii) any Contract requiring the primary purpose of which is the development of any Intellectual Property, independently or jointly, by or for the Company or any of its Subsidiaries to guarantee the Liabilities Subsidiaries, excluding Contracts with employees and contractors of any Person (other than the Company or a Subsidiary) or any of its Subsidiaries entered into in the ordinary course of business consistent with past practice and pursuant to which any Person (other than a form of agreement made available to the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Buyer Parties;
(viii) any Contract under which lease agreements of the Company or any of its Subsidiaries hasthat pertain to each parcel of Leased Real Property (each, 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 Persona “Lease Agreement”);
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure ScheduleLabor Agreement;
(x) any plan or Contract (other than at-will employment offer letters that are terminable by the Company without any notice or payment obligation or other liability and consultant and contractor agreements that are terminable with notice of 30 days or less without any Person payment obligation or other liability) providing for change in control or transaction bonuses, retention bonuses, severance, stock, options, stock purchases, profit sharing, pension, retirement to any employee or independent contractor of the Company or any of its Subsidiaries;
(xi) Contracts (A) pursuant to which containing a covenant materially restricting the ability of the Company or any of its Subsidiaries (or Parent or any of its Affiliates after the ClosingEffective Time) is to compete or may be required engage in any line of business in any geographic area or to pay milestonescompete with any Person, royalties to market any product 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 to solicit customers; (B) under which containing a provision granting the Company other party “most favored nation” status 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 equivalent preferential pricing terms; or (C) that imposes grant any materialright of first refusal or right of first offer or that limit the ability of the Company, non-monetary obligations on the Company or any of its Subsidiaries or any of its Affiliates (or including Parent or any of its Affiliates after the Closing); andEffective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or assets;
(xii) Contracts relating to indebtedness having an outstanding principal amount in excess of $100,000;
(xiii) each collective bargaining agreement Contracts that grant or create a Lien, other Contract with the Company or its Subsidiariesthan a Permitted Lien, on the one hand, and any labor union, labor organization material property or works council representing employees asset of the Company or any of its Subsidiaries, on the other hand;
(xiv) any settlement or similar Contract with restricting in any material respect the operations or conduct of the Company or any Subsidiary thereof or any of their respective Affiliates (including Parent and its Affiliates after the Effective Time);
(xv) each Contract between the Company or any of 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 Subsidiaries, any payment beneficial owner, directly or incur any Liability as a result indirectly, of more than five percent (5%) of the consummation shares of Company Common Stock or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the transactions contemplated by this AgreementExchange Act), termination on the other hand, including any Contract pursuant to which the Company or any of employment its Subsidiaries has an obligation to indemnify such officer, director, affiliate, beneficial owner or both; andfamily member;
(xvi) any Contract with a Governmental Authority;
(xvii) any other Contract the performance of which requires either (A) annual to settle a Legal Proceeding involving amounts over $25,000 or where there are outstanding obligations to be fulfilled or payments to be made by the Company or from its Subsidiaries;
(xviii) any Contract pursuant to which any of the Company or its Subsidiaries in excess is lessee of or holds or operates any personal property owned by any other Person, for which the annual rental rate exceeds $300,000 100,000;
(xix) any Contract providing for indemnification or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andany guaranty, in each case, that is not terminable by the applicable under which the Company or any of its Subsidiaries without penalty upon less has continuing obligations as of the date of this Agreement (other than thirty any Contract providing for indemnification ancillary to a related commercial arrangement entered into the ordinary course of business consistent with past practice); and
(30xx) days’ prior written noticeeach acquisition or divestiture Contract (excluding Lease Agreements) that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by the Company or any Subsidiary thereof of future payments in excess of $100,000.
(b) (i) Each Material Contract is valid and binding on all Contracts set forth in (or required to be set forth in) Section 3.16(a) of the Company Disclosure Letter and Contracts that have been or its Subsidiaries, would be required to be filed by the Company as applicable, a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Company’s KnowledgeSecurities Act or disclosed as a “material contract” on a Current Report on Form 8-K or has been or would be required to be disclosed pursuant to Item 404 of Regulation S-K under the Securities Act (collectively, the counterparties thereto“Company Material Contracts”) are valid, binding and is in full force and effect and are enforceable by the Company or the applicable Subsidiary in accordance with its terms against the Company or its Subsidiaries andtheir terms, 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 Limitations, (ii) the Company, or the applicable Subsidiary, has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or its Subsidiaries without notice or lapse of time, or both) in breach or default thereunder and, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach ofno other party to any Company Material Contract is (with or without notice or lapse of time, or both) in breach or default underthereunder, any Material Contract except in each case as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, and (iii) no event since January 1, 2021, neither the Company nor any of its Subsidiaries has occurred that received written (with or without due to the Knowledge of the Company, oral) notice of any actual, alleged, possible or lapse of time or both) would result in a material breach potential violation of, or default underfailure to comply with, any Material Contract by the Company term or its Subsidiaries orrequirement of, or intention to cancel or modify in a manner adverse to the Company’s Knowledge, the counterparties thereto. The any Company has made available Material Contract, except in each case as would not reasonably be excepted 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 be material to the main contractual relationship between the parties to Company and its Subsidiaries, taken 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)whole.
Appears in 1 contract
Material Contracts. (a) Section 3.13(aSchedule 3.24 sets forth a complete list of the following Contracts of the Delta Companies (the Contracts on that Schedule that are referred to therein as Scheduled Contracts are, collectively, with the Employment Agreements, referred to herein as the "Scheduled Contracts"):
(i) each agreement or arrangement of the Delta Companies that (A) requires or permits the other party thereto to require the payment or incurrence of liabilities by the Delta Companies subsequent to the date of this Agreement of more than One Hundred Thousand Dollars ($100,000) and (B) cannot be terminated or canceled without liability, premium or penalty if written notice is given thirty (30) days prior to the effective date of the notice;
(ii) each agreement or arrangement of the Delta Companies involving the obligation of any of the Delta Companies to render services subsequent to the date of this Agreement involving payments to the Delta Companies in excess of One Hundred Thousand Dollars ($100,000), with an additional designation of those agreements under which the Sellers believe that there is a reasonable probability that direct costs relating to the contract will exceed revenue by at least Twenty-Five Thousand Dollars ($25,000);
(iii) all performance bonds, completion bonds, bid bonds, suretyship agreements and similar instruments and agreements and any letters of credit and related reimbursement agreements issued with respect to the Scheduled Contracts referred to in clauses (i) and (ii) of this Section 3.24;
(iv) each agreement for the Company Disclosure Schedule contains acquisition or disposition of a listing material amount of assets (other than inventory or assets procured for customers in the ordinary course of business) and all partnership or joint venture agreements, teaming arrangements or other similar Contracts entered into by the Delta Companies since January 1, 1998 or currently in effect;
(v) each agreement, arrangement, contract, commitment or obligation of the Delta Companies restricting or otherwise affecting the ability of the Delta Companies to compete in the Business or otherwise in any jurisdiction subsequent to the date of this Agreement;
(vi) all material license or other agreements relating to the use of Intellectual Property Rights that currently remain executory in whole or in part, except any of the foregoing related to the use of generally available computer software;
(vii) forms of all Contracts described standard warranty agreements, product guarantees or indemnity agreements currently in effect with respect to any of the services rendered by the Delta Companies;
(viii) all material license, sale, distribution, sales representative, commission, marketing, agent, franchise, technical assistance or similar agreements relating to or providing for the marketing and/or sale of products or services that currently remain executory in whole or in part to which the Delta Companies are parties or by which they are otherwise bound;
(ix) written contracts and other written agreements with: (A) any individual who is a current or former officer, director, employee or consultant having a remaining term of more than six (6) months from the date hereof that cannot be cancelled on notice of 30 days or less and either (1) providing for an obligation to pay and/or accrue compensation of One Hundred Thousand Dollars ($100,000) or more per annum to such officer, director, employee or consultant, or (2) providing for the payment of fees or other consideration in excess of One Hundred Thousand Dollars ($100,000); or (B) any foreign agent or representative;
(x) all contracts relating to, or evidences of, or guarantees of, or providing security for, Debt that is currently outstanding (other than intercompany Debt that is being discharged concurrently with the Closing pursuant to the provisions of Section 7.5);
(xi) contracts and other agreements for the purchase or sale of inventory, equipment or services that (A) contain an escalation, renegotiation or redetermination clause and (B) cannot be terminated or canceled without liability, premium or penalty if written notice is given thirty (30) days prior to the effective date of the notice;
(xii) contracts and other agreements that currently remain executory in whole or in part and provide for (A) the sale of any assets or properties of any of the Delta Companies other than in the ordinary course of business and for a sale price exceeding One Hundred Thousand Dollars ($100,000) in any one case (or in the aggregate, in the case of any series of related contracts or other agreements) or (B) the grant to any person of any preferential rights to purchase any assets or properties of any of the Delta Companies; and
(xiii) all other existing contracts or agreements, not otherwise covered by clauses (i) through (xiii) below to which, as of the date of this Agreementxii), the Company or its Subsidiaries is a party or by loss of 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 noticeMaterial Adverse Effect.
(ib) Each Material The Sellers have made true and correct copies of all Scheduled Contracts available to the Buyer or ▇▇▇▇▇▇. Except as disclosed in Schedule 3.24, each Scheduled Contract is a legal, valid and binding on obligation of the Company or its Subsidiaries, as applicableDelta Companies and, to the Company’s Knowledgeknowledge of the Sellers, the counterparties each other party thereto, and is in full force and effect and enforceable against each such party thereto in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledge, the counterparties thereto except as such enforceability may be (subject to i) limited by any applicable bankruptcy, insolvency, reorganizationfraudulent transfer, moratorium moratorium, reorganization or other Laws similar laws affecting generally the enforcement of creditors’ ' rights generally and (ii) subject to general principles of equity), 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 regardless of time or both) would result whether such enforceability is considered in a proceeding in equity or at law). Except as disclosed in Schedule 3.24, there is no existing or asserted material breach of, or default under, of any Material of the Delta Companies under any Scheduled Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge of the Sellers, the counterparties of any other party thereto. Schedule 3.24 sets forth all Required Contractual Consents.
(c) Except as set forth on Schedule 3.24, to the knowledge of the Sellers, there is no intent by any party to any Scheduled Contract to terminate or amend the terms thereof or to refuse to renew any such Scheduled Contract that contains a renewal provision that has not yet been exercised, upon expiration of its current term. The Company has made available to Parent true and Delta Companies are not currently paying liquidated damages in lieu of performance under any Scheduled Contract.
(d) Schedule 3.24 also sets forth a complete copies list, as of October 22, 2001, of all Material Contracts in effect as outstanding proposals to customers of the date hereof (other than purchase orders, invoices, Delta Companies that the Sellers reasonably consider to be active and similar confirmatory or administrative documents that are ancillary to all proposals currently being prepared for customers of the main contractual relationship between the parties to a particular Contract or group of Contracts and thatDelta Companies, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightscase involving a contract with estimated contract revenues in excess of Five Hundred Thousand Dollars ($500,000).
Appears in 1 contract
Sources: Acquisition Agreement (McDermott 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 Neither the Company nor any of its Subsidiaries is a party to or bound by, and neither they nor their properties are subject to, any contracts, agreements or arrangements required to be disclosed in a Form 10-K or 10-Q under the Exchange Act which is not filed as an exhibit to one or more of the SEC Documents filed and publicly available.
(xiiiii) below to which, Schedule 3(i) sets forth as of the date hereof (A) a list of this Agreementall written and oral contracts, agreements, instruments or arrangements 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 such Subsidiary or Liabilities any of their respective assets is bound which would be required to be filed as exhibits to the Company's Annual Report on Form 10-K for the year ending December 31, 2001 or any subsequent Exchange Act filing by the Company, including, without limitation, all such contracts, agreement, instrument and arrangements relating to the CSD Business that would have been required to be filed by the Company as an exhibit to an SEC Document had the CSD Acquisition occurred prior to the date of this Agreement; and (B) the following written and oral arrangements (all such Contracts written or oral agreements, arrangements or commitments as are required to be set forth on Section 3.13(aSchedule 3(i) of or filed as exhibits to any SEC Document, collectively 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, each partnership, collaboration, co-promotion, commercialization or research or development Contract, joint venture 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 with another Person that is material to make any payment or incur any Liability as a result the operation of the consummation business 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 any of its Subsidiaries or the CSD Business;
(B) each contract or agreement under which the Company or any of its Subsidiaries have created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness of more than $100,000 in principal amount or under which the Company or any of its Subsidiaries have imposed (or may impose) a Lien on any of their respective assets, whether tangible or intangible securing Indebtedness in excess of $300,000 or (B) aggregate payments 100,000. "Indebtedness" shall have the meaning ascribed to or from such term in 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).Certificate;
Appears in 1 contract
Material Contracts. (a) Except as filed as an exhibit to the SEC Reports, Section 3.13(a) 4.16 of the Company Disclosure Schedule contains a listing lists each of the following Contracts (and all Contracts described in clauses (imaterial amendments, modifications, supplements and side letters thereto) through (xiii) below to whichwhich the Company or any Subsidiary, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they any of their respective properties or assets are boundbound (each such Contract, other than being a “Material Contract”) (notwithstanding anything below, “Material Contract” shall not include any Contract between the Company and any of the Subsidiaries or any Contract that (1) is terminable upon sixty (60) or fewer days’ notice without a penalty or premium, (2) will be fully performed and satisfied as of or prior to Closing, (3) is a Company Benefit PlanLease, and that are not expired (4) is a Company Ground Lease, 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(a5) 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 is a Third Party Confidentiality Agreement to the placing extent it relates solely to the non-disclosure 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, confidential information and all rights and obligations appurtenant thereto or would not reasonably be expected to require result in an obligation (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments other than with respect to or from the non-disclosure of confidential information and all rights and obligations appurtenant thereto) to the Company or its Subsidiaries in excess any Subsidiary after the date of this Agreement):
(a) all Contracts that call for aggregate annual payments by, or other consideration from, the Company or any Subsidiary under such Contract of more than $1,000,000 500,000 over the life remaining term of such Contract, including the Contract or Loan Documents;
(Bb) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) operation and reciprocal easement agreements or other agreements for certain property specific restrictive covenants, exclusive use clauses, or use, leasing, building, other similar property specific restrictions and other Property Restrictions, any Contract that restricts (A) limits or purports to limit, restrict) in any material respect, the freedom Company or any Subsidiary, or any of their respective Affiliates, including, following consummation of the Company or its Subsidiaries to engage or compete Contemplated Transactions, any controlling affiliates, from (i) engaging in any material 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 hasany Subsidiary or any of their respective Affiliates is currently engaged, directly (ii) owning any material properties or indirectly, made or agreed to make any loan, advancematerial assets, or assignment of payment to (iii) conducting any Person outside of the Ordinary Course of Business or, individually or material property development in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Persongeographic area;
(ixc) any Contract required to be disclosed on Section 3.19 of Contracts for the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company pending or its Subsidiaries (future purchase 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, distributionoption to purchase or sell, 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 with respect contractual right to purchase or sell, by merger, purchase or sale of assets or stock or otherwise, any material real property, including any Company Product Property or any material Intellectual asset that, if purchased by the Company or any Subsidiary, would be a Company Property, or any Contracts for the pending or future disposition of any Company Property;
(xid) any Contract for concerning Intellectual Property which is 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 Subsidiaries, taken as a whole;
(e) any other Contract that is in full force and effect as of the assets date of this Agreement that is filed or business required to be filed as an exhibit to the SEC Reports filed subsequent to January 1, 2012 pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(f) any partnership, limited liability company, joint venture or other Person similar agreement with any third party, including the Partnership Agreement;
(other than acquisitions or dispositions made in the Ordinary Course of Business), or under g) any Contract pursuant to which the Company or any Subsidiary agrees to indemnify or hold harmless any director or executive officer of the Company or any Subsidiary (other than the Organizational Documents and the organizational documents of the Subsidiaries) or, other than in the ordinary course of business (which ordinary course of business includes indemnities to any lender, servicer or financing source in connection with the incurrence, assignment, termination or amendment of any Indebtedness, indemnities to any party to a purchase and sale agreement with the Company, and indemnities to any financial advisor, consultant or vendor in the ordinary course of business), any third party;
(h) any loan agreement, letter of credit, indenture, note, bond, debenture, mortgage, pledge agreement, securities agreement or any other document, agreement or instrument evidencing a capitalized leased obligation or other Indebtedness of, for the benefit of, the Company or any Subsidiary or any guaranty thereof in excess of $1,000,000;
(i) any guarantee of any Indebtedness or debt securities of another person (other than another Company or its Subsidiaries Subsidiaries), or any “keep well” or other agreement to maintain any financial statement condition of another Person or any other agreement having the economic effect of any of the foregoing;
(j) any Contract pursuant to which any Company, or any of its Subsidiaries, has potential liability in respect of any continuing obligation with respect to an “purchase price adjustment, earn-out,” out or contingent purchase price or other contingent or deferred payment obligationin excess of $1,000,000;
(xiik) any settlementContract concerning an interest rate cap, conciliation interest rate collar, interest rate swap, currency hedging transaction, master lease or any other derivate contract or similar Contract (A) requiring monetary payments by agreement to which the Company or its Subsidiaries after any Subsidiary is a party;
(l) any employment Contracts, severance, change in control or termination Contracts with executive officers of the date Company;
(m) any Third Party Confidentiality Agreement that is not specifically excluded as a Material Contract pursuant to clause (5) of this Agreement, Section 4.16;
(Bn) with a Governmental Authority any Contract which requires or (C) that imposes any material, non-monetary obligations on purports to require the Company or its Subsidiaries (any Subsidiary, or after the consummation of the Contemplated Transactions, Parent or any of its Affiliates after the Closing)Affiliates, to offer any third party co-development or participation rights in any new development or acquisition; and
(xiiio) each collective bargaining agreement any brokerage agreement, service contract, or other Contract with any contract pursuant to which the Company or any of its Subsidiaries, on the one handacts as leasing or managing agent for or provides development services for any real property for any third party, and any labor unionin each case, 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 pursuant to which 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 realizes fee income in excess of $300,000 or 100,000 per annum. Except as set forth in Section 4.16 of the Company Disclosure Schedule, (Bi) aggregate payments to or from none of the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that any Subsidiary 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 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 other party is in material breach or violation of, or default under, any Material Contract in any material respects, (ii) none of the Company or any Subsidiary has received since January 1, 2011, any written claim of default by the Company or such Subsidiary under any Material Contract that has not been cured to the satisfaction of the other part(y)(ies) thereto, and (iii) no event has occurred that (or circumstance, with or without due notice or lapse the passage of time or both) time, has occurred which would result in a material breach ofdefault or acceleration of payment, or default underforfeiture of any rights, any under a Material Contract by except, in the case of each of clauses (i), (ii) and (iii) above, as would not (x) prevent or materially delay the consummation of the Mergers or (y) result in a Material Adverse Effect. Except as, individually or in the aggregate, has not had and would not be reasonably expected to have a Material Adverse Effect, each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Company or its Subsidiaries orand the Subsidiaries, as applicable, and to the knowledge of the Company’s Knowledge, the counterparties other part(y)(ies) thereto. The Except for Material Contracts filed as exhibits to the SEC Reports, the Company has made available to Parent true and complete copies of all Material Contracts (including any material amendments, modifications or side letters thereto in effect existence as of the date hereof). As of the date of this Agreement, none of the Company, the Partnership, or any of the Subsidiaries (or any party acting on their behalf) has amended or waived the provisions of any confidentiality, standstill or similar agreement entered into by the Company and third parties in connection with the Company’s exploration of strategic alternatives since January 1, 2012 (“Third Party Confidentiality Agreements”), other than pursuant to the Company’s invitations to submit Acquisition Proposals prior to the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to without otherwise changing the main contractual relationship between the parties to a particular Contract or group terms of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightssuch agreement).
Appears in 1 contract
Material Contracts. (a) Section 3.13(a21(a) of the Company Disclosure Schedule Letter contains an accurate and complete list of each Contract described below in this Paragraph 21(a) (other than a listing Benefit Plan or, only for purposes of all Contracts Paragraphs 21(a)(i), 21(a)(ii) and 21(a)(iii), purchase orders or invoices entered into in the ordinary course of business substantially consistent with the form listed in Paragraph 21(a)(i) or (ii) of the Company Disclosure Letter) to which the Company or any of its Subsidiaries is a party as of the date hereof (together with any Contract of the type described in clauses (i) through (xiiixvi) below to which, as of this Paragraph 21 entered into after the date of this AgreementAgreement and prior to the Effective Time) (each Contract of a type described in this Paragraph 21(a), 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 theretoContract"):
(i) any Contract with a top 20 customer (determined on the basis of the aggregate revenues recognized by the Company and its Subsidiaries during calendar year 2023 through the date hereof);
(ii) any Contract with a top 20 vendor or supplier of goods, services or other assets (determined on the basis of the aggregate dollar volume of purchases made by the Company and its Subsidiaries during calendar year 2023 through the date hereof);
(iii) any Contract that is not a lease for real property and that both (A) requires 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 after the date hereof in an amount having an expected value in excess of $3,000,000 and (B) cannot be cancelled by the Company or any of its Subsidiaries without penalty or further payment (other than liabilities incurred prior to the time of termination) without more than 90 days' notice;
(iv) any Material Lease;
(v) any Contract relating to Indebtedness for borrowed money the acquisition or disposition of any securities, assets or businesses or exclusive licensing agreement (whether by merger, purchase of stock, purchase of assets or otherwise) that contains any outstanding non-competition, earn-out or other contingent payment obligations of the Company or any of its Subsidiaries that would reasonably be expected to result in the Company's or to any of its Subsidiaries' receipt or making of future payments in excess of $3,000,000;
(vi) any Contract involving the placing licensing of a Lien or other grant of rights in Intellectual Property (other excluding, in each case, (A) licenses for unmodified, commercial off the shelf computer Software that are generally available on nondiscriminatory pricing terms with an annual license fee of less than a Permitted Lien$2,000,000 and (B) on any material assets or properties of non-exclusive licenses granted by the Company or any of its SubsidiariesSubsidiaries in the ordinary course of business);
(iivii) any Contract under which the Company or any of its Subsidiaries (A) is lessee of of, or holds or operates, in each case, any tangible personal property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do rent exceeds $3,000,000 and (B) cannot exceed $500,000cancel without penalty or further payment (other than liabilities incurred prior to the time of termination) without more than 90 days' notice;
(iiiviii) any Contract under which that expressly prohibits the payment of dividends or distributions in respect of the capital stock or voting or equity securities of the Company or any of its Subsidiaries, or prohibits the pledging of the capital stock or voting or equity securities or other equity interests of the Company or any of its Subsidiaries or the issuance of any guaranty by the Company or any of its Subsidiaries;
(ix) any Contract with any Affiliate, director, executive officer (as such term is lessor defined in the 1934 Act), holder of 5% or permits any third party more of the shares of capital stock of the Company or, to hold or operate, in each casethe Knowledge of the Company, any tangible property of their respective Affiliates (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 immediate family members (other than any Nonindemnity under the Constating Documents of the Company and its Subsidiaries) that is required to be disclosed pursuant to Item 404 of Regulation S-Scheduled Contracts)K promulgated by the SEC in the Form 10-K or proxy statement pertaining to an annual meeting of shareholders;
(vx) any Contract that (A) limits or purports to limit, in any material respect, 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 (including, following the Effective Time, the Parent and its Subsidiaries) to compete in any line of business or geographic region, or offer or sell any products, assets or services, with or to any Person, or (B) expressly contains any material "most favored nation" provision, exclusive dealing or marketing arrangement or arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right to any other Person;
(xi) any partnership, joint venture, joint development, strategic alliance or other similar Contract;
(xii) any Contract relating to outstanding indebtedness of the Company or the Subsidiaries of the Company, including any indenture, loan or credit agreement, or indebtedness in connection with any settlement facilities or lines of credit or any financial guaranty or credit support, indemnification, assumption or endorsement thereof (in each case whether incurred, assumed, guaranteed or secured by any asset), in each case, in the principal amount of $3,000,000 or more (including any related security or pledge agreements), other than Contracts among the Company and its wholly owned Subsidiaries;
(xiii) any Contract requiring contributions of capital, capital expenditures or the acquisition or construction of fixed assets in excess of $3,000,000 in the next 12 months (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, contributions made to the Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentby its Subsidiaries);
(xiv) any Collective Agreements;
(xv) any employment, consulting, bonus, commissions or Contract providing for the settlement of any other compensation Contract with an employee or individual consultant or independent contractor, Proceeding asserted by any Person (including a Governmental Authority) (A) 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 payment by the Company or any of its Subsidiaries in excess of $2,000,000 or (B) that imposes continuing requirements, obligations, liabilities or restrictions that are material to make any payment or incur any Liability the Company and its Subsidiaries, taken as a result whole;
(xvi) any other Contract that is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the consummation of the transactions contemplated by this Agreement, termination of employment or bothSEC); and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from that commits 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 enter into any Contracts of the agreement and, types described in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty foregoing clauses (30i) days’ prior written noticethrough (xv).
(b) The Company has made available to the Parent an accurate and complete copy of each Material Contract (including any applicable amendments, modifications or material waivers) as in effect as of the date hereof. Except for breaches, violations or defaults which has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof, (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 and enforceable in accordance with its terms against (ii) neither the Company or nor any of its Subsidiaries andSubsidiaries, nor to the Company’s Knowledge's Knowledge any other party to a Material Contract, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium is in breach or other Laws affecting generally the enforcement default 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 any provision of, or default undertaken or failed to take any act which, any Material Contract and (iii) no event has occurred that (with or without due notice or notice, lapse of time or both) , would result constitute a default under the provisions of such Material Contract, and, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a material breach ofCompany Material Adverse Effect, neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or default under, defaulted 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
Material Contracts. (a) Section 3.13(a) Schedule 6.13 sets forth all of the Company Disclosure Schedule contains a listing of all following Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries which RxCentric is a party or by which they are boundit is bound or under which RxCentric receives direct benefit: (a) Contracts, other than a Company Benefit Planincluding all contract rights, with all RxCentric customers, copies of which shall have been delivered to and that are not expired accepted by Allscripts prior to Closing; (b) Contracts with any current officer or have not been terminated and not including director of RxCentric, or any Affiliate thereof; (c) Contracts with any labor union association representing any employee of RxCentric; (d) Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are any party is required to be set forth on Section 3.13(apurchase or sell a stated portion of its requirements or output from or to another party; (e) Contracts for the sale of any of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies assets 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 (RxCentric other than a Permitted Lien) on in the ordinary course of business or for the grant to any material assets or properties Person of the Company or any preferential rights to purchase any of its Subsidiaries;
assets; (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 (Af) 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 venture agreements; (g) material Contracts containing covenants of RxCentric not 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 in any geographical area or covenants of any other person not to compete with RxCentric in any line of business or in any area or that would so limit or purport geographical area; (h) Contracts relating 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 RxCentric of any operating business or the Company or its Subsidiaries of the assets or business capital stock of any other Person Person; (other than acquisitions i) Contracts relating to the borrowing of money; 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;
(xiij) any settlement, conciliation or similar Contract (A) requiring monetary payments by other Contracts that involve 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 expenditure of more than $500,000 per year;
(xvi) 25,000 in the aggregate or $10,000 annually and require performance by any employment or consulting Contract with severanceparty more than one year from the date hereof. The Contracts set forth on Schedule 6.13 are referred to herein, change in controlcollectively, retention or similar arrangementsas the “Material Contracts.” There have been made available to Allscripts, that will result in any obligation (absolute or contingent) true, correct and complete copies of all of the Company or any Material Contracts, and all of its Subsidiaries to make any payment or incur any Liability same shall be in writing, duly executed by all parties thereto. Except as a result set forth on Schedule 6.13, all of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any Material Contracts and 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 agreements are in full force and effect and are the legal, valid and binding obligations of RxCentric, enforceable against it 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 Laws and similar laws affecting generally the enforcement of creditors’ rights and subject remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Except as set forth on Schedule 6.13, (ii) RxCentric is not in default in any material respect under any Material Contracts, nor has there occurred any event that but for the Company passage of time, the giving of notice or its Subsidiaries andboth would constitute such a default; nor, to the Company’s Knowledgeknowledge of RxCentric, the counterparties thereto are not in material breach of, or default under, is any other party to 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 thereunder 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.
Appears in 1 contract
Sources: Asset Purchase Agreement (Allscripts Healthcare Solutions Inc)
Material Contracts. Section 3.8 of the Disclosure Schedule sets forth a true and complete list (a) Section 3.13(aincluding a summary of material terms for any oral Contract), as of the date of this Agreement, of each Contract (other than purchase orders and standard sales contracts in the ordinary course of business consistent with past practice) of the Company Disclosure Schedule contains and its Subsidiaries currently in effect which by its terms (i) is not terminable at will within 12 months and requires future expenditures or receipts or other performance with respect to goods or services having an annual value in excess of $1,000,000, (ii) relates to any Funded Indebtedness, (iii) limits or purports to limit the ability of the Company or any of its Subsidiaries to compete in any line of business or in any geographic area, (iv) requires any capital commitment or capital expenditure, individually or in the aggregate, by the Company or its Subsidiaries of greater than $1,000,000, (v) relates to the acquisition or disposition of any business or assets or under which the Company or any of its Subsidiaries has any future liability greater than $1,000,000 with respect to an “earn-out”, contingent purchase price, deferred purchase price or similar contingent payment obligation, or any indemnification obligation, (vi) reflects any partnership, joint venture, limited liability company or similar agreement or arrangement, (vii) provides for change in control payments, (viii) relates to material Intellectual Property (other than licenses with annual license fees of less than $1,000,000), or (ix) is material to the business, assets, condition (financial or otherwise), financial position, or results of operations of the Company and its Subsidiaries, taken as a listing whole (the types of all Contracts described in clauses (i) through (xiii) below to whichix), 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 True 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 representativesBuyer, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company material amendments, waivers or its Subsidiaries or other changes thereto prior 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 date hereof. Each Material 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 Personfull force and effect, except for any lease or agreement under which where 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 failure to hold or operate, be 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 full force and effect 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 ornot, 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 reasonably be expected to be disclosed on Section 3.19 of the have a 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 theretoAdverse Effect, and is in full force and effect valid, binding and enforceable in accordance with its terms against the Company or its Subsidiaries applicable Subsidiary and, to the knowledge of the Company’s Knowledge, each other party thereto and is enforceable against the counterparties Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject to applicable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or other Laws affecting creditor’s rights generally and by the enforcement application of creditors’ rights and subject to general principles of equity), (ii) . Neither the Company or nor any of its Subsidiaries nor, to the knowledge of the Company, any other party to such Material Contracts is in breach of or default under any obligation thereunder or has given notice of default to any other party thereunder, in each case which breach or default would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect 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 (iii) no event has occurred condition exists that (with or without due notice or lapse of time or both) both would result in constitute 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)thereunder.
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Material Contracts. (a) Section 3.13(a4.13(a) of the Company Seller Disclosure Schedule contains sets forth a listing list of all Contracts of the type described in clauses below (iagainst the applicable subsection specified below) through (xiii) below to which, as of the date of this Agreement, the any Company or any of the Acquired Companies is a party or bound or by which any assets or properties of any Company or any of the Acquired Companies are bound (each Contract, a “Material Contract”):
(i) Any Contract to which the Seller or any of its Subsidiaries is Affiliates (other than the Acquired Companies) are a party or by which they the Seller or any of its Affiliates (other than the Acquired Companies) are bound, other than a Company Benefit Planon the one hand, 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 an Acquired Company are 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 to Indebtedness for borrowed money of by which the Company or its Subsidiaries or to an Acquired Company are bound, on the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiarieshand;
(ii) any Contract under which (other than a Contract that is required to be disclosed pursuant to another clause of this Section 4.13(a)) for the purchase or sale by any Company or any of the Acquired Companies of materials, supplies, goods, services, equipment or assets that has a remaining term of more than one (1) year and is not terminable without penalty within ninety (90) days’ notice and, during the twelve (12) month period ended December 31, 2021, required payments by the Company or its Subsidiaries is lessee any of the Acquired Companies or holds to the Company or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease of the Acquired Companies of USD $500,000 or agreement under which the aggregate annual rental payments do not exceed $500,000more;
(iii) any Contract under master franchise agreement to which the Company or its Subsidiaries an Acquired Company is lessor of party as the franchisor or permits any third party licensor in Territory, master development agreement or hotel management agreement to hold or operate, in each case, any tangible property (other than real property), owned or controlled by which the Company or its Subsidiaries, except for any lease or agreement under which an Acquired Company is party as the aggregate annual rental payments do not exceed $200,000manager;
(iv) any franchise or license agreement (Aincluding any master franchise or license agreement) joint ventureto which the Company or an Acquired Company is party as the franchisor or licensor in Territory (collectively, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contractthe “Franchise Agreements”), in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated case the payments of recurring fees received by such Contract), aggregate payments to or from the Company or its Subsidiaries any of the Acquired Companies during the twelve (12) month period ended December 31, 2021 were in excess of USD $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)500,000;
(v) any Contract with a third party distribution intermediary (e.g., online travel agencies, consortia, travel management companies or global distribution systems) that produced more than 300,000 room nights for the Acquired Companies during the twelve (A12) limits or purports to limitmonth period ended December 31, 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 Closing2021;
(vi) any Contract requiring that contains restrictive covenants that prohibit or materially restrict 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 any of the agreementAcquired Companies from freely engaging in any business or in any geographic territory or market or in any business activity (other than the solicitation, hiring or engagement of any Person but including the solicitation of any customer);
(vii) any Contract requiring the Company containing covenants or its Subsidiaries to guarantee the Liabilities of other obligations granting or containing any Person (other than the Company current 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 $200,000future obligations regarding exclusive rights;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed containing a most favored nation provision with respect to make any loan, advance, or assignment of pricing and/or 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 Personterms;
(ix) any Contract required mortgage, indenture, note, bond, credit agreement, loan agreement, financing agreement or other agreement relating to be disclosed on Section 3.19 Indebtedness incurred by the Acquired Companies (other than Indebtedness owed to any other Acquired Company) with an outstanding principal amount or undrawn commitment in excess of the Company Disclosure ScheduleUSD $100,000;
(x) any Contract for a partnership, joint venture, strategic alliance or other similar equity investment agreement with any Person (A) pursuant to which other than 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 Companies;
(xi) any Contract for the acquisition of any real property, Person or any business unit thereof or the disposition of any portion assets of the assets or business of Acquired Companies entered since the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person Prior Transaction Date (other than acquisitions or dispositions made in the Ordinary Course of Businessordinary course), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “in each case (A) involving payments in excess of USD $3,000,000; (B) providing for earn-out,” , deferred or contingent purchase price or similar contingent payment obligations on the part of any Acquired Company in excess of USD $500,000 that have not been paid prior to the date of this Agreement; or (C) contain non-competition or non-solicitation obligations (or other contingent or deferred payment obligationcomparable obligations that would materially restrict the operation of the Business) that continue to be in effect as of the date of this Agreement;
(xii) any settlement, conciliation Contract relating to any employment or similar Contract (A) agreement requiring monetary payments payment 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); andAcquired Companies of annual base compensation in excess of USD $200,000 for any officer, employee, or other individual service provider of any of the Acquired Companies;
(xiii) each collective bargaining agreement any Contract to which a member of the board of directors, or other Contract with the Company or its Subsidiariessimilar governing body, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handan Acquired Company is a party or to which he/she is bound;
(xiv) any Contract or benefit plan that provides for a payment, benefit or accelerated vesting upon the execution of this Agreement or the Closing or in connection 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, ;
(xv) any Contract providing for payment of severance upon the termination of employment or both; andservice with any officer, individual employee, or other individual service provider on a full-time, part-time, consulting or other basis;
(xvi) each Real Property Lease and each other lease, guaranty, sublease, license, sublicense and other occupancy agreement for the leasing, subleasing, licensing, sublicensing, use, or occupancy of, or otherwise granting a right in, any real property (excluding franchise agreements), including the Leased Real Property, including all amendments, supplements, modifications, replacements and restatements of the foregoing;
(xvii) any other Collective Bargaining Agreement;
(xviii) any Contract that prohibits the performance payment of which requires either dividends or distributions in respect of the Equity Interests of any Acquired Company, prohibits the pledging of the Equity Interests of any Acquired Company or prohibits the issuance of guarantees by any Acquired Company;
(xix) any (A) annual payments to Contract that is a settlement or from the Company or its Subsidiaries in excess of $300,000 similar agreement with any Governmental Authority, or (B) aggregate payments a Governmental Authorization or Consent of a Governmental Authority to which any Company or from any of the Acquired Companies is currently subject, in each case involving material performance by the Company or its Subsidiaries any of the Acquired Companies;
(xx) any Contract pursuant to which any Acquired Company has an obligation to make an investment in or loan to any other Person (which, for the avoidance of doubt, does not include provision of key money to any Person) in excess of USD $1,500,000 over 250,000;
(xxi) any settlement agreement under which the life Acquired Companies are required to make payments in excess of USD $100,000 or that contain material non-monetary obligations that were entered into in the past three (3) years;
(xxii) any Contract with a Governmental Authority;
(xxiii) license agreements, covenants not to ▇▇▇, coexistence agreements and other Contracts (other than franchise agreements) through which any of the agreement Acquired Companies (or, solely with respect to any Transferred Intellectual Property, Radisson Belgium) grants or receives rights to use any material Intellectual Property, excluding any contract under which Shrinkwrap Software is licensed or made available to the Acquired Companies; and
(xxiv) any Contract for brokerage or finders’ fees or agents’ commissions, in each case, that is not terminable by the applicable the Company fees related to investment banking or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticesimilar advisory services or any similar charges.
(ib) The Seller has made or will make available to the Purchaser true, accurate and complete copies of all Material Contracts. 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, binding and enforceable in accordance with its terms against obligation of the Company or its Subsidiaries andSeller and any Acquired Company, as applicable. Neither the Seller nor, to the Company’s KnowledgeKnowledge of the Seller, the counterparties thereto (subject any other party to applicable bankruptcyany Material Contract, insolvency, reorganization, moratorium has materially breached 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 ofdefaulted under, or default underhas improperly terminated, revoked or accelerated, any Material Contract and (iii) Contract, and, there exists no condition or event has occurred that (with or without due notice or which, after notice, lapse of time or both) , would result in a constitute any such material breach, default, termination, revocation or acceleration. The Seller has not received written notice of material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, any written notice of intention to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all terminate any 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
Sources: Share Sale and Purchase Agreement (Choice Hotels International Inc /De)