Specified Contracts. (a) As of the date of this Agreement, neither the Company nor any of the Company Subsidiaries is a party to any Contract 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 (a “Filed Company Contract”) that has not been so filed (other than this Agreement). (b) Section 4.16(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of: (i) each loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries, in each case, in excess of $250,000, is outstanding or may be incurred, other than any such Contract between or among any of the Company and any of the Company Subsidiaries; (ii) each Contract, other than any Contract of which the primary purpose is the provision of services, to which the Company or any of the Company Subsidiaries is a party entered into since January 1, 2017 or with respect to which the Company or any of the Company Subsidiaries has any continuing material obligations, in each case, relating to the acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $500,000, except for acquisitions and dispositions of properties and assets in the ordinary course of business consistent with past practice; (iii) each Contract in effect as of the date of this Agreement of the Company or any of the Company Subsidiaries that (A) grants a right of exclusivity, right of first offer, right of first refusal or similar right with respect to the Product in any business or geographic region; or (B) restricts in any way the ability of the Company or any of its Affiliates (including post-Closing) to compete with any business or in any geographical area or to solicit customers; in each case under clauses (A) or (B) (and the defined terms therein) that limits in any material respect the operation of the Acquired Companies, taken as a whole, as currently conducted; (iv) each Contract in effect as of the date of this Agreement to which the Company or any of the Company Subsidiaries is a party pursuant to which the Company or a Company Subsidiary grants or receives a material license or covenant not to xxx, option, right of first refusal or other material right to any Intellectual Property, except for (A) non-exclusive licenses to off-the-shelf commercially available Software for less than $250,000 on an annual basis and (B) any research agreements, services agreements, vendor agreements and consulting agreements, in each case that do not grant any Person any material Intellectual Property rights; (v) any Contract in effect as of the date of this Agreement that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of any of the Products, which, if terminated or not renewed, would reasonably be expected to be material to the Acquired Companies, taken as a whole; (vi) each Contract in effect as of the date of this Agreement that grants to any Person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any securities, assets or other interest of any Acquired Company (other than Intellectual Property or Products); (vii) each Contract in effect as of the date of this Agreement of the Company or any of the Company Subsidiaries that establishes a material partnership, joint venture or strategic alliance or similar arrangement with a Third Party (including any other agreements relating thereto with between the Company or any of the Company Subsidiaries on the one hand, and such Third Party on the other hand); (viii) each Contract with any Governmental Authority; and (ix) each Contract with any of the contract manufacturing organizations set forth on Section 4.16(b)(ix) of the Company Disclosure Letter or any of their respective Affiliates. Each Contract of the type described in this Section 4.16(b) and each Filed Company Contract is referred to herein as a “Specified Contract.” As of the date of this Agreement, the Company has Made Available to Parent true and complete copies of each Specified Contract, together with all modifications and amendments thereto. There are no oral Specified Contracts. (c) Each Specified Contract is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the Company Subsidiaries party thereto and, to the Company’s Knowledge, any other party thereto in accordance with its terms and is not subject to any claims, charges, set-offs or defenses, except as such enforceability may be limited by the Bankruptcy and Equity Exceptions, except where the failure of such Contract to be valid, binding, enforceable or in full force and effect, has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole. None of the Company nor any of the Company Subsidiaries party to any Specified Contract is in breach of or default under or, as of the date of this Agreement, has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, and as of the date hereof and to the Company’s Knowledge, no other party to any Specified Contract is in breach of or default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, except in each case as has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole. To the Company’s Knowledge, no event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute a breach of or event of default by the Company, (ii) result in a right of termination, modification or renegotiation for the counterparty or (iii) cause or permit the acceleration of or other changes to any right of the counterparty or obligation of the Company under any Specified Contract, except, in the case of clauses (i), (ii) and (iii), as has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alexion Pharmaceuticals, Inc.), Merger Agreement (Portola Pharmaceuticals Inc)
Specified Contracts. (a) As of the date of this Agreement, neither the Company nor any Except as set forth in Section 3.8 of the Company Disclosure Schedule, there have been made available to Parent and its representatives true, correct and complete copies of all of the following contracts to which Company or any of its Subsidiaries is a party to or by which any Contract required to be filed by of them is bound (collectively, the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed (other than this Agreement).
(b) Section 4.16(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of:
"Specified Contracts"): (i) each loan contracts with any directors and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to those persons identified in the last sentence of Section 3.1(a); (ii) collective bargaining agreements for which any Indebtedness of the Company or any of its domestic Subsidiaries is a party; (iii) pending contracts (A) for the sale of any of the assets of Company or any of its Subsidiaries, other than contracts entered into in the ordinary course of business or (B) for the grant to any person of any preferential rights to purchase any of its assets, other than in the ordinary course of business; (iv) contracts which restrict, in any material respect, the Company Subsidiariesor any of its Subsidiaries from competing in any line of business or with any person in any geographical area; (v) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money involving indebtedness for borrowed money, in each case, in excess of $250,000, is outstanding 2,500,000; (vi) contracts with any stockholders of Company beneficially owning 5% or may be incurred, other than any such Contract between or among any more of the Company and any Company's outstanding capital stock on the date hereof; (vii) acquisition, merger, asset purchase or sale agreements with a purchase price in excess of the Company Subsidiaries;
(ii) each Contract, other than any Contract of which the primary purpose is the provision of services, to which the Company or any of the Company Subsidiaries is a party $10,000,000 entered into since January July 1, 2017 1995 (other than agreements for the purchase and sale of materials or with respect to which the Company or any of the Company Subsidiaries has any continuing material obligations, in each case, relating to the acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $500,000, except for acquisitions and dispositions of properties and assets products in the ordinary course of business consistent with past practice;
business); (iiiviii) each Contract in effect as contracts relating to any material joint venture, partnership, strategic alliance or other similar agreement; and (ix) all other agreements, contracts or instruments entered into which, to the knowledge of the date of this Agreement of the Company or any of the Company Subsidiaries that (A) grants a right of exclusivityCompany, right of first offer, right of first refusal or similar right with respect to the Product in any business or geographic region; or (B) restricts in any way the ability of the Company or any of its Affiliates (including post-Closing) to compete with any business or in any geographical area or to solicit customers; in each case under clauses (A) or (B) (and the defined terms therein) that limits in any material respect the operation of the Acquired Companies, taken as a whole, as currently conducted;
(iv) each Contract in effect as of the date of this Agreement to which the Company or any of the Company Subsidiaries is a party pursuant to which the Company or a Company Subsidiary grants or receives a material license or covenant not to xxx, option, right of first refusal or other material right to any Intellectual Property, except for (A) non-exclusive licenses to off-the-shelf commercially available Software for less than $250,000 on an annual basis and (B) any research agreements, services agreements, vendor agreements and consulting agreements, in each case that do not grant any Person any material Intellectual Property rights;
(v) any Contract in effect as of the date of this Agreement that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of any of the Products, which, if terminated or not renewed, would reasonably be expected to be are material to the Acquired Companies, taken as a whole;
(vi) each Contract in effect as of the date of this Agreement that grants to any Person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any securities, assets or other interest of any Acquired Company (other than Intellectual Property or Products);
(vii) each Contract in effect as of the date of this Agreement of the Company or any of the Company and its Subsidiaries that establishes a material partnership, joint venture or strategic alliance or similar arrangement with a Third Party (including any other agreements relating thereto with between the Company or any of the Company Subsidiaries on the one hand, and such Third Party on the other hand);
(viii) each Contract with any Governmental Authority; and
(ix) each Contract with any of the contract manufacturing organizations set forth on Section 4.16(b)(ix) of the Company Disclosure Letter or any of their respective Affiliates. Each Contract of the type described in this Section 4.16(b) and each Filed Company Contract is referred to herein as a “Specified Contract.” As of the date of this Agreement, the Company has Made Available to Parent true and complete copies of each Specified Contract, together with all modifications and amendments thereto. There are no oral Specified Contracts.
(c) Each Specified Contract is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the Company Subsidiaries party thereto and, to the Company’s Knowledge, any other party thereto in accordance with its terms and is not subject to any claims, charges, set-offs or defenses, except as such enforceability may be limited by the Bankruptcy and Equity Exceptions, except where the failure of such Contract to be valid, binding, enforceable or in full force and effect, has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole. None A list of the Specified Contracts is set forth on Section 3.8 of the Company nor any Disclosure Schedule. The provisions of the Company Subsidiaries party to any Specified Contract is in breach of or default under or, as of the date of this Agreement, has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, and as of the date hereof and to the Company’s Knowledge, no other party to any Specified Contract is in breach of or default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, except in each case as has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole. To the Company’s Knowledge, no event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute a breach of or event of default by the Company, (ii) result in a right of termination, modification or renegotiation for the counterparty or (iii) cause or permit the acceleration of or other changes to any right of the counterparty or obligation of the Company under any Specified Contract, except, in the case of clauses (i), (ii) and (iii), as has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole.this
Appears in 1 contract
Samples: Agreement and Plan of Merger (Honeywell International Inc)
Specified Contracts. (a) As of the date of this Agreement, neither the Company nor any of the Company Subsidiaries is a party to any Contract 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 (a “Filed Company Contract”) that has not been so filed (other than this Agreement)or disclosed on Section 4.16(a) of the Company Disclosure Letter.
(b) Section 4.16(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, forth a true and complete list of:
(i) each Contract with a related person (as defined in Item 404 of Regulation S-K of the Exchange Act) that would be required to be disclosed in the Company SEC Documents;
(ii) each loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries, in each case, in excess of $250,000500,000, is outstanding or may be incurred, other than any such Contract between or among any of the Company and any of the Company SubsidiariesSubsidiaries and any letters of credit;
(iiiii) each Contract, other than any Contract of which the primary purpose is the provision of services, to which the Company or any of the Company Subsidiaries is a party entered into since January 1, 2017 or with respect to which the Company or any of the Company Subsidiaries has any continuing material obligations, in each case, relating to the acquisition or disposition by the Company or any of the Company Subsidiaries of any business, stock, properties or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) for, in each case, aggregate consideration of more than $500,000, except for acquisitions and dispositions of properties immaterial and obsolete assets in the ordinary course of business consistent with past practicebusiness;
(iiiiv) each Contract in effect as of the date of this Agreement of the Company or any of the Company Subsidiaries that (A) grants a right of exclusivity, right of first offer, right of first refusal or similar right with respect to the Product in any business or geographic regionregion (“Exclusive Rights”); or (B) restricts in any way the ability of the Company or any of its Affiliates (including post-Closing) the Company Subsidiaries to compete with any business or in any geographical area or to solicit customers; or (C) containing “most favored nation” or similar provisions; in each case under clauses (A), (B) or (BC) (and the defined terms therein) that limits in any material respect the operation of the Acquired Companies, taken as a whole, as currently conductedconducted and that may not be canceled by the Company or any of the Company Subsidiaries upon notice of 180 days or less without material penalty or other material liability to the Acquired Companies, taken as a whole;
(ivv) each Contract in effect as of the date of this Agreement to which the Company or any of the Company Subsidiaries is a party pursuant to which (A) regarding the Company licensing or a Company Subsidiary grants sublicensing of, or receives a material license or covenant not to xxxgrant of rights to, option, right of first refusal or other material right to any Intellectual Property, Property (except for (Av) non-exclusive licenses to off-the-shelf nonexclusive licenses of commercially available Software for less than $250,000 Software, (w) agreements between the Company or any of the Company Subsidiaries, on an annual basis the one hand, and their employees or consultants, on the other hand, entered into in the ordinary course of business on the standard form of agreement made available in the Data Room, (x) nonexclusive licenses entered into with customers on the standard form of agreement made available in the Data Room in the ordinary course of business, (y) nonexclusive licenses entered into with contractors in the ordinary course of business, and (z) Contractual obligations in which the grant of non-exclusive rights to Intellectual Property is incidental or ancillary to performance of such obligations), (B) pursuant to which any research agreementsAcquired Company agrees to settle or resolve any Intellectual Property-related dispute (including any settlement, services agreements, vendor agreements and consulting agreementsco-existence or similar Contract) or that otherwise affects, in each case that do not grant any Person any material Intellectual Property rights;
(v) respect, any Contract in effect as of the date of this Agreement that relates Acquired Company’s ability to the researchuse, developmentenforce, distribution, marketing, supplydisclose, license, collaborationor otherwise exploit any Company Owned IP in any material respect, co-promotion or manufacturing (C) regarding the assignment, acquisition, divestiture, or development of any of the Products, which, if terminated or not renewed, would reasonably be expected to be material to the Acquired Companies, taken as a wholeIntellectual Property;
(vi) each Contract in effect as of the date of this Agreement that grants to any Person person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any securitiesassets material to the Acquired Companies, assets or other interest of any Acquired Company (other than Intellectual Property or Products)taken as a whole;
(vii) each Contract Collective Bargaining Agreement;
(viii) involves performance of services or delivery of products by the Company or any of the Company Subsidiaries with each of the 10 largest customers of the Company and the Company Subsidiaries, taken as a whole, in effect each case measured on the basis of the annual dollar value of recurring revenue calculated as of August 2, 2024 (the “Material Customers”);
(ix) involves the receipt of services or products to the Company or any of the Company Subsidiaries with each of the 10 largest commercial suppliers of the Company and the Company Subsidiaries, taken as a whole, in each case measured on the basis of the annual dollar value of purchases made by the Company and its Subsidiaries for the twelve (12)-month period ended August 2, 2024 (“Material Suppliers”);
(x) each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority involving an aggregate consideration of more than $250,000 or pursuant to which the Company or any of the Company Subsidiaries will have any material outstanding obligation after the date of this Agreement or which provides for any non-monetary relief (other than customary confidentiality obligations) which would continue to apply to the Company or any Company Subsidiary following the Effective Time; and
(xi) each material Contract of the Company or any of the Company Subsidiaries that establishes relates to a material partnership, joint venture or strategic alliance or similar arrangement with a Third Party (including any other agreements relating thereto with between the Company or any of the Company Subsidiaries on the one hand, and such Third Party on the other hand);
(viii) each Contract with any Governmental Authority; and
(ix) each Contract with any of the contract manufacturing organizations set forth on Section 4.16(b)(ix) of the Company Disclosure Letter or any of their respective Affiliatesarrangement. Each Contract of the type described in this Section 4.16(b) and each Filed Company Contract is referred to herein as a “Specified Contract.” As of the date of this Agreement, the Company has Made Available to Parent true and complete copies of each Specified Contract, together with including all modifications and amendments thereto. There are no oral Specified Contracts.
(c) Each Specified Contract is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the Company Subsidiaries party thereto and, to the Company’s Knowledge, any other party thereto in accordance with its terms and is not subject to any claims, charges, set-offs or defensesterms, except as such enforceability may be limited by the Bankruptcy and Equity Exceptions, except where the failure of such Contract to be valid, binding, enforceable or in full force and effect, has not beenhad, and would not reasonably be expected to behave, material to individually or in the Acquired Companiesaggregate, taken as a wholeCompany Material Adverse Effect. None of the Company nor any of the Company Subsidiaries party to any Specified Contract is in breach of or default under orunder, or as of the date of this Agreement, Agreement has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, and as of the date hereof and to the Company’s Knowledge, no other party to any Specified Contract is in breach of or default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, except in each case as has not beenhad, and would not reasonably be expected to behave, material to individually or in the Acquired Companiesaggregate, taken as a wholeCompany Material Adverse Effect. To the Company’s Knowledge, no No event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute a breach of or event of default by the Company, (ii) result in a right of termination, modification or renegotiation for the counterparty or (iii) cause or permit the acceleration of or other changes to any right of the counterparty or obligation of the Company under any Specified Contract, except, in the case of clauses (i), (ii) and (iii), as has not beenhad, and would not reasonably be expected to behave, material to individually or in the Acquired Companiesaggregate, taken as a wholeCompany Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (SecureWorks Corp)
Specified Contracts. (a) As of the date of this Agreement, neither the Company nor any of the Company Subsidiaries is a party to any Contract 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 (a “Filed Company Contract”) that has not been so filed (other than this Agreement)filed.
(b) Except as the same has been filed as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, Section 4.16(b3.16(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of:
(i) each loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries, Subsidiaries is outstanding or may be incurred in each case, an amount in excess of $250,000, is outstanding or may be incurred, other than any such Contract between or among any of the Company and any of the Company Subsidiaries;
(ii) each Contract, other than any Contract of which the primary purpose is the provision of services, to which the Company or any of the Company Subsidiaries is a party entered into since January 1, 2017 2018 or with respect to which the Company or any of the Company Subsidiaries has any continuing material obligations, in each case, relating to the acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $500,000250,000, except for acquisitions and dispositions of properties and assets in the ordinary course of business consistent with past practicebusiness;
(iii) each Contract in effect as of the date of this Agreement of the Company or any of the Company Subsidiaries that (A) grants a right of exclusivity, right of first offer, right of first refusal or similar right with respect to the Product in any business or geographic region; or (B) restricts in any way the ability of the Company or any of its Affiliates (including post-Closing) to compete with any business or in any geographical area or to solicit customers; in each case under clauses (A) or (B) (and the defined terms therein) that limits in any material respect the operation of the Acquired Companies, taken as a whole, as currently conducted;
(iv) each Contract in effect as of the date of this Agreement to which the Company or any of the Company Subsidiaries is a party pursuant to which the Company or a Company Subsidiary grants or receives a material license or covenant not to xxx, option, right of first refusal or other material right to any Intellectual Property, except for (A) non-exclusive licenses to off-the-shelf commercially available Software for less than $250,000 on an annual basis and (B) any research agreements, services agreements, vendor agreements and consulting agreements, in each case that do not grant any Person any material Intellectual Property rights;
(v) any Contract in effect as of the date of this Agreement that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of any of the Products, which, if terminated or not renewed, would reasonably be expected to be material to the Acquired Companies, taken as a whole;
(vi) each Contract in effect as of the date of this Agreement that grants to any Person person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any securities, assets or other interest of the Company or any Acquired of the Company (other than Intellectual Property or Products)Subsidiaries;
(viiiv) each Contract in effect as of the date of this Agreement of the Company or any of the Company Subsidiaries that establishes a material partnership, joint venture or strategic alliance similar arrangement;
(v) each Contract for the sale of products or services to any Governmental Authority;
(vi) any clearing arrangements or other Contract with any clearing agents or brokers or for correspondent clearing, payment and settlement activities;
(vii) any selling, distribution, dealer, product or marketing Contracts or similar arrangement commission-based Contracts with a Third Party Parties, or any Contracts with broker-dealers (or associated persons thereof, as defined in the Exchange Act), except for any such Contract entered into in the ordinary course of business;
(viii) any settlement or conciliation agreement with any Person (including any Governmental Authority) entered into since January 1, 2018;
(ix) any non-competition Contract or other agreements relating thereto with Contract that (A) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Closing Date, BRF or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Closing Date, BRF or its Subsidiaries, (C) grants “most favored nation” status that, following the Closing Date, would apply to BRF or its Subsidiaries, including the Company and its Subsidiaries or (D) prohibits or limits the rights of the Company or any of its Subsidiaries to make, sell or distribute any products or services, or use, transfer, license, distribute or enforce any of their respective Intellectual Property;
(x) any Contract providing for payments to be made by the Company or its Subsidiaries, or any acceleration of rights or similar matters, upon a change in control;
(xi) any Contract between the Company or any of the Company Subsidiaries its Subsidiaries, on the one hand, and such Third Party on the other hand);
(viii) each Contract with any Governmental Authority; and
(ix) each Contract with any of the contract manufacturing organizations set forth on Section 4.16(b)(ix) director or officer of the Company Disclosure Letter or any Person beneficially owning five percent or more of the outstanding Shares of any of their respective Affiliates, on the other hand, excluding any such Contracts related to employment, or employee compensation or benefits; or
(xii) any Contract not otherwise included in clauses (i) through (xi) of Section 3.16(b) that involves payments to or by the Company or any of its Subsidiaries of an amount reasonably expected to exceed $250,000 pursuant to such Contract, excluding any such Contracts related to employment, or employee compensation or benefits. Each Contract of the type described in this Section 4.16(b3.16(b) and each Filed Company Contract is referred to herein as a “Specified Contract.” As of the date of this Agreement, the Company has Made Available to Parent BRF true and complete copies of each Specified Contract, together with all modifications and amendments thereto. There are no oral Specified Contracts.
(c) Each Specified Contract is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the Company Subsidiaries party thereto and, to the Company’s Knowledge, any other party thereto in accordance with its terms and is not subject to any claims, charges, set-offs or defensesterms, except as such enforceability may be limited by the Bankruptcy and Equity Exceptions, except where the failure of such Contract to be valid, binding, enforceable or in full force and effect, has not been, and would not reasonably be expected to be, material to the Acquired CompaniesCompany or its Subsidiaries, taken as a whole. None of the Company nor any of the Company Subsidiaries party to any Specified Contract is in breach of or default under orunder, or as of the date of this Agreement, Agreement has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, and as of the date hereof and to the Company’s Knowledge, no other party to any Specified Contract is in breach of or default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, except in each case as has not been, and would not reasonably be expected to be, material to the Acquired CompaniesCompany and its Subsidiaries, taken as a whole. To the Company’s Knowledge, no event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute a breach of or event of default by the Company, (ii) result in a right of termination, modification or renegotiation for the counterparty or (iii) cause or permit the acceleration of or other changes to any right of the counterparty or obligation of the Company under any Specified Contract, except, in the case of clauses (i), (ii) and (iii), as has not been, and would not reasonably be expected to be, material to the Acquired CompaniesCompany and its Subsidiaries, taken as a whole.
Appears in 1 contract
Specified Contracts. (a) As Excluding the Leases, Schedule 3.10(a) sets forth a complete and accurate list of all of the date of this Agreement, neither the following Contracts to which any Acquired Company nor any of the Company Subsidiaries is a party to any Contract or bound, in each case (such Contracts that are listed or required to be filed by listed on Schedule 3.10(a), together with the Company IP Licenses, are herein referred to as a the “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company ContractSpecified Contracts”) that has not been so filed (other than this Agreement).
(b) Section 4.16(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of:):
(i) each loan and credit agreement, note, debenture, bond, indenture and other similar any Reinsurance Agreements relating to the Business (the “Reinsurance Documentation”);
(ii) any Contract pursuant involving aggregate consideration in excess of $125,000 with respect to which any Indebtedness of Acquired Company individually or $1,000,000 with respect to the Company or any of Acquired Companies in the Company Subsidiariesaggregate, in each case, in excess of $250,000, is outstanding or may be incurred, other than any twelve (12) month period and that require such Contract between or among any of the Company and any of the Company Subsidiaries;
(ii) each Contract, other than any Contract of which the primary purpose is the provision of services, to which the Acquired Company or the Acquired Companies bound thereby to purchase any of the Company Subsidiaries is product or service from a party entered into since January 1, 2017 or with respect to which the Company or any of the Company Subsidiaries has any continuing material obligations, in each case, relating to the acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $500,000, except for acquisitions and dispositions of properties and assets in the ordinary course of business consistent with past practicethird party;
(iii) each any Contract (1) with any Business Employee or former employee of any Acquired Company related to such Person’s employment or severance (excluding any offer letter of employment entered into in effect as the Ordinary Course) that contains an obligation to pay more than $150,000 per calendar year or (2) providing for the engagement of individual independent contractors providing services to the date Business that contains an obligation to pay more than $150,000 per calendar year;
(iv) any Contract under which any Acquired Company is (1) lessee of this Agreement or holds or operates any tangible personal property (excluding vehicles), owned by any other Person, and the annual payments under such Contract excess of $100,000 or (2) lessor of or permits any Person to hold or operate any tangible personal property (excluding vehicles) owned or controlled by an Acquired Company;
(v) any Contract pursuant to which any Acquired Company subcontracts work to a Person in connection with its respective Business;
(vi) any Contract for the Company sale, transfer, purchase, acquisition or other disposition of any material assets or Equity Interests of the Company Subsidiaries that a third party (Aother than an Insider) grants a right of exclusivity, right of first offer, or for any right of first refusal or similar right or obligation to sell, transfer, purchase, acquire or otherwise dispose of any material assets or Equity Interest of a third party (other than an Insider), in each case, under which there are outstanding rights or obligations of any party thereto;
(vii) any Contract that involves the payment or receipt of any earn-out or similar contingent payment;
(viii) any Contract that is a guarantee of Indebtedness;
(ix) any Contract related to an Insider Transaction (as defined below);
(x) any Contract related to the provisions of management services to any Acquired Company;
(xi) any Contract that (1) requires the Business or any Acquired Company to deal exclusively with the counterparty with respect to the Product marketing, sales, franchising, or distribution or (2) prohibits or restricts any Acquired Company from competing in any business jurisdiction or geographic region; or (B) restricts in any way the ability of the Company or any of its Affiliates (including post-Closing) to compete with any business or in any geographical area or to solicit customers; in each case under clauses (A) or (B) (and the defined terms therein) that limits in any material respect the operation of the Acquired Companies, taken as a whole, as currently conductedmarket;
(ivxii) each any Contract pursuant to which any Acquired Company agrees to indemnify any Person not an Insider (other than customary indemnification obligations set forth in effect as of commercial Contracts entered into in the Ordinary Course);
(xiii) any Contract that is a settlement, conciliation or similar Contract with any Governmental Entity or third party pursuant to which any Acquired Company will have any material outstanding obligation after the date of this Agreement to which the Company or any of the Company Subsidiaries is a party pursuant to which the Company or a Company Subsidiary grants or receives a material license or covenant not to xxx, option, right of first refusal or other material right to any Intellectual Property, except for (A) non-exclusive licenses to off-the-shelf commercially available Software for less than $250,000 on an annual basis and (B) any research agreements, services agreements, vendor agreements and consulting agreements, in each case that do not grant any Person any material Intellectual Property rightsAgreement;
(vxiv) any Contract for the settlement of any Proceeding in effect as excess of $50,000 or Threatened Proceeding in excess of $75,000; or
(xv) any Contract that provides for any joint venture, partnership or similar arrangement.
(b) Each Specified Contract and all Contractual Liability Insurance Policies (“CLIP”) relating to the date TCA Business, including any CLIP relating to any and all service contract obligations assumed by LCA (each CLIP shall be deemed a Specified Contract for purposes of this Agreement that relates Agreement) have been made available to Buyer. Each Specified Contract set forth on Schedule 3.10(a) is valid, binding, and enforceable against the researchapplicable Acquired Company, developmentand to Acquired Companies’ Knowledge, distributioneach other party thereto, marketingin accordance with their respective terms except as the enforceability thereof may be limited by Enforceability Exceptions. Except as set forth on Schedule 3.10(a), supplyno Acquired Company is in default or breach under, license, collaboration, co-promotion or manufacturing in receipt of any written claim of default or breach under, any Specified Contract and, to Acquired Companies’ Knowledge, no other party thereto is in default or breach thereunder. No event has occurred that (with the Products, which, if terminated passage of time or not renewed, the giving of notice or both) would reasonably be expected to be material result in a default or breach by any Acquired Company, or to the Acquired Companies’ Knowledge, taken as any other party thereto, under any Specified Contract. No Acquired Company has received any written notice that any other party to a whole;
(vi) each Specified Contract in effect as of intends not to renew, or to breach, cancel, terminate, or renegotiate the date of this Agreement that grants to any Person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any securities, assets or other interest existing terms of any Acquired Company (other than Intellectual Property or Products);
(vii) each Specified Contract in effect as of the date of this Agreement of the Company or any of the Company Subsidiaries that establishes a material partnership, joint venture or strategic alliance or similar arrangement with a Third Party (including any other agreements relating thereto with between the Company or any of the Company Subsidiaries on the one hand, and would adversely affect such Third Party on the other hand);
(viii) each Contract with any Governmental Authority; and
(ix) each Contract with any of the contract manufacturing organizations set forth on Section 4.16(b)(ix) of the Company Disclosure Letter or any of their respective Affiliates. Each Contract of the type described in this Section 4.16(b) and each Filed Company Contract is referred to herein as a “Specified Contract.” As of the date of this Agreement, the Company has Made Available to Parent true and complete copies of each Specified Contract, together with all modifications and amendments thereto. There are no oral Specified Contracts.
(c) None of the Reinsurance Documentation are finite reinsurance, financial reinsurance or such other form of reinsurance that does not meet the risk transfer requirements under applicable Laws. Each Specified Contract is of the Reinsurance Documentation has been properly characterized and accounted for in the LCC Statutory Statements in accordance with SAP and no Governmental Entity has objected to such characterization and accounting. All treaties or agreements related to Reinsurance Documentation ceded or assumed are in full force and effect and there is a valid and binding agreement enforceable against the Company or no present default under any of the Company Subsidiaries party thereto and, to the Company’s Knowledge, any other party thereto in accordance with its terms and is not subject to any claims, charges, set-offs or defenses, except as such enforceability may be limited by the Bankruptcy and Equity Exceptions, except where the failure of such Contract to be valid, binding, enforceable or in full force and effect, has not beenReinsurance Documentation, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole. None of the Company nor any of the Company Subsidiaries party to any Specified Contract is in breach of or default under orLCC, as of the date of this Agreementhereof, has provided or not received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, and as of the date hereof and to the Company’s Knowledge, no other party to any Specified Contract is in breach termination of or default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Specified Contract, except in each case as has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a whole. To the Company’s Knowledge, no event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute a breach of or event of default by the Company, (ii) result in a right of termination, modification or renegotiation for the counterparty or (iii) cause or permit the acceleration of or other changes to any right of the counterparty or obligation of the Company under any Specified Contract, except, in the case of clauses (i), (ii) and (iii), as has not been, and would not reasonably be expected to be, material to the Acquired Companies, taken as a wholeReinsurance Documentation.
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