Common use of Specified Contracts Clause in Contracts

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. (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 $200,000, is outstanding or may be incurred, other than any such Contract between or among (1) any of the Company and any of the Company Subsidiaries, or (2) the Company or any of the Company Subsidiaries and any subcontractors for ongoing projects entered into in the ordinary course of business; (ii) each Contract or series of related Contracts to which the Company or any of the Company Subsidiaries is a party entered into since January 1, 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, directly or indirectly, by the Company or any of the Company Subsidiaries of any business, equity interests, properties, rights or assets (whether by merger, sale or purchase of equity interests, sale or purchase of assets or otherwise) for, in each case, aggregate consideration of more than $100,000, except for acquisitions and dispositions of properties and assets in the ordinary course of business; (iii) each Contract 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; (iv) each Contract with any Governmental Authority; (v) each material Contract relating to material Intellectual Property or material IT Assets, other than non-exclusive commercially available software or non-exclusive licenses granted by the Company or Company Subsidiaries in the ordinary course of business; (vi) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires annual aggregate future payments in excess of $200,000; (vii) any Contract pursuant to which the Company or any of its Subsidiaries has entered into a partnership or joint venture with any other person; (viii) any collective bargaining agreement or other agreements with any labor organizations, works councils, trade unions or other employee representatives; (ix) other than the Organizational Documents of the Company or any of its Subsidiaries, any Contract that provides for indemnification by the Company of any officer, director, member, manager or employee of the Company or any Subsidiary of the Company; (x) any Contract pursuant to which the Company or any of its Subsidiaries has submitted a currently pending or outstanding bid, tender, offer or proposal to deliver or provide materials or products or provide services valued in excess of $750,000 or perform or incur other obligations in excess of $750,000 and which, as of the date hereof, would reasonably be expected to become a legally binding obligation of the Company or such Subsidiary by the unilateral act(s) of one or more Persons (other than the Company and its Subsidiaries); (xi) any Contract with a top ten customer of the Company and its Subsidiaries by revenue for the twelve months ended December 31, 2019 or for the nine-months ended September 30, 2020; and (xii) is a settlement, conciliation or similar Contract (A) with any Governmental Authority entered into on or after January 1, 2018, (B) which would require the Company or any of its Affiliates to pay consideration of more than $250,000, or (C) that subjects the Company or any of its Affiliates to any material ongoing requirements or restrictions. 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 legal, 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, 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 or, to the Company’s Knowledge alleged in writing to be, 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. (d) Set forth on Section 4.16(d) of the Company Disclosure Letter are the ten (10) largest customers and ten (10) largest suppliers of the Company, on a consolidated basis, for each of the years ended on December 31, 2019 and the nine-months ended September 30, 2020). Except as would not be material to the Company, the Company has not received any written notice from any such customer or supplier that such customer or supplier intends to terminate, materially reduce, or not renew, its relationship with the Company. Except as set forth on Section 4.16(d) of the Company Disclosure Letter, the Company has not made any bid or proposal that is reasonably expected to be of a loss-making nature (that are known or likely to result in a loss to the Company) on completion of performance ascertained by reference to gross margin (direct and indirect labor, materials, and overheads in accordance with GAAP and past practices). (e) To the Company’s Knowledge, the Company is not, and no Subsidiary of the Company is, a party to a Contract that (i) contains “most favored nation” terms or conditions (including with respect to pricing), exclusivity obligations, or rights of first refusal or rights of first offer (or similar terms) or (ii) materially restricts the Company or any of its Affiliates from engaging in any material line of business, developing, marketing or distributing products or services, grants exclusive rights to any Person with respect to any product, service, or geographic area, or obligates the Company or any of its Affiliates not to compete with another Person or in any geographic area or during any period of time.

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. (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 $200,0001,000,000, is outstanding or may be incurred, other than any such Contract between or among (1) any of the Company and any of the Company Subsidiaries, or (2) the Company or any of the Company Subsidiaries and any subcontractors for ongoing projects entered into in the ordinary course of business; (ii) each Contract or series of related Contracts to which the Company or any of the Company Subsidiaries is a party entered into since January 1, 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, directly or indirectly, disposition by the Company or any of the Company Subsidiaries of any business, equity interests, properties, rights properties or assets (whether by merger, sale or purchase of equity interests, sale or purchase of assets or otherwise) for, in each case, aggregate consideration of more than $100,0001,000,000, except for acquisitions and dispositions of properties and assets in the ordinary course of business; (iii) each Contract 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 (“Exclusive Rights”); 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 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, covenant not to xxx, or other material right to any Intellectual Property (except for (A) non-exclusive licenses to off-the-shelf commercially available Software for less than $1,000,000 on an annual basis, (B) agreements between the Company or any of the Company Subsidiaries, on the one hand, and their employees or consultants, on the other hand, entered into in the ordinary course of business and (C) nonexclusive licenses of Intellectual Property that are entered into in the ordinary course of business consistent with past practice); (v) each Contract 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; (ivvi) each Contract of the Company or any of the Company Subsidiaries that relates to a partnership, joint venture or similar arrangement; (vii) each Contract with any Governmental Authority; (v) each material Contract relating to material Intellectual Property or material IT Assets, other than except for clinical study agreements, materials transfer agreements and non-exclusive commercially available software or non-exclusive licenses granted by the Company or Company Subsidiaries disclosure agreements entered into in the ordinary course of business; (vi) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires annual aggregate future payments in excess of $200,000; (vii) any Contract pursuant to which the Company or any of its Subsidiaries has entered into a partnership or joint venture with any other person; (viii) any collective bargaining agreement or other agreements with any labor organizations, works councils, trade unions or other employee representatives;(A) the Convertible Senior Notes Indentures and (B) the Capped Call Documentation; and (ix) other than each Contract with any of the Organizational Documents contract manufacturing organizations set forth on Section 4.16(b)(ix) of the Company Disclosure Letter or any of its Subsidiaries, any Contract that provides for indemnification by the Company of any officer, director, member, manager or employee of the Company or any Subsidiary of the Company; (x) any Contract pursuant to which the Company or any of its Subsidiaries has submitted a currently pending or outstanding bid, tender, offer or proposal to deliver or provide materials or products or provide services valued in excess of $750,000 or perform or incur other obligations in excess of $750,000 and which, as of the date hereof, would reasonably be expected to become a legally binding obligation of the Company or such Subsidiary by the unilateral act(s) of one or more Persons (other than the Company and its Subsidiaries); (xi) any Contract with a top ten customer of the Company and its Subsidiaries by revenue for the twelve months ended December 31, 2019 or for the nine-months ended September 30, 2020; and (xii) is a settlement, conciliation or similar Contract (A) with any Governmental Authority entered into on or after January 1, 2018, (B) which would require the Company or any of its Affiliates to pay consideration of more than $250,000, or (C) that subjects the Company or any of its Affiliates to any material ongoing requirements or restrictionstheir 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 legal, 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, 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 or, to the Company’s Knowledge alleged in writing to be, 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. (d) Set forth on Section 4.16(d) of the Company Disclosure Letter There are the ten (10) largest customers and ten (10) largest suppliers of the Company, on a consolidated basis, for each of the years ended on December 31, 2019 and the nine-months ended September 30, 2020). Except as would not be material to the Company, the Company has not received any written notice from any such customer or supplier that such customer or supplier intends to terminate, materially reduce, or not renew, its relationship with the Company. Except as set forth on Section 4.16(d) of the Company Disclosure Letter, the Company has not made any bid or proposal that is reasonably expected to be of a loss-making nature (that are known or likely to result in a loss to the Company) on completion of performance ascertained by reference to gross margin (direct and indirect labor, materials, and overheads in accordance with GAAP and past practices). (e) To the Company’s Knowledge, no Contracts under which the Company is notrequired to bear any royalty, and no Subsidiary milestone or other payment obligations pursuant to the terms of the Company is, a party to a Contract that (i) contains “most favored nation” terms or conditions (including with respect to pricing), exclusivity obligations, or rights of first refusal or rights of first offer (or similar terms) or (ii) materially restricts the Company or any of its Affiliates from engaging in any material line of business, developing, marketing or distributing products or services, grants exclusive rights to any Person with respect to any product, service, or geographic area, or obligates the Company or any of its Affiliates not to compete with another Person or in any geographic area or during any period of timeAlnylam License Agreement.

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 Sched- ule, 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. (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 bargain- ing agreements for which any Indebtedness of the Company or any of its domes- tic 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 busi- ness; (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 $200,0002,500,000; (vi) contracts with any stockholders of Company beneficially owning 5% or more of the Company's outstanding capital stock on the date hereof; (vii) acquisition, is outstanding merger, asset purchase or may be incurredsale agreements with a purchase price in excess of $10,000,000 entered into since July 1, 1995 (other than any such Contract between agreements for the purchase and sale of materials or among (1) any of the Company and any of the Company Subsidiaries, or (2) the Company or any of the Company Subsidiaries and any subcontractors for ongoing projects entered into products in the ordinary course of business; (ii) each Contract or series of related Contracts to which the Company or any of the Company Subsidiaries is a party entered into since January 1, 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, directly or indirectly, by the Company or any of the Company Subsidiaries of any business, equity interests, properties, rights or assets (whether by merger, sale or purchase of equity interests, sale or purchase of assets or otherwise) for, in each case, aggregate consideration of more than $100,000, except for acquisitions and dispositions of properties and assets in the ordinary course of business; (iii) each Contract 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; (iv) each Contract with any Governmental Authority; (v) each material Contract relating to material Intellectual Property or material IT Assets, other than non-exclusive commercially available software or non-exclusive licenses granted by the Company or Company Subsidiaries in the ordinary course of business; (vi) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires annual aggregate future payments in excess of $200,000; (vii) any Contract pursuant to which the Company or any of its Subsidiaries has entered into a partnership or joint venture with any other person; ); (viii) contracts relating to any collective bargaining agreement material joint venture, partnership, strategic alliance or other agreements with any labor organizations, works councils, trade unions or other employee representatives; similar agreement; and (ix) all other than agreements, contracts or instruments entered into which, to the Organizational Documents of the Company or any of its Subsidiaries, any Contract that provides for indemnification by the Company of any officer, director, member, manager or employee of the Company or any Subsidiary knowledge of the Company; (x) any Contract pursuant , are material to which the Company or any of its Subsidiaries has submitted a currently pending or outstanding bid, tender, offer or proposal to deliver or provide materials or products or provide services valued in excess of $750,000 or perform or incur other obligations in excess of $750,000 and which, as of the date hereof, would reasonably be expected to become a legally binding obligation of the Company or such Subsidiary by the unilateral act(s) of one or more Persons (other than the Company and its Subsidiaries); (xi) any Contract with a top ten customer of the Company and its Subsidiaries by revenue for the twelve months ended December 31, 2019 or for the nine-months ended September 30, 2020; and (xii) is a settlement, conciliation or similar Contract (A) with any Governmental Authority entered into on or after January 1, 2018, (B) which would require the Company or any of its Affiliates to pay consideration of more than $250,000, or (C) that subjects the Company or any of its Affiliates to any material ongoing requirements or restrictions. 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 legal, 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, 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 Company nor any of the Company Subsidiaries party to any Specified Contract Contracts is or, to the Company’s Knowledge alleged in writing to be, 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. (d) Set set forth on Section 4.16(d) 3.8 of the Company Disclosure Letter are the ten (10) largest customers and ten (10) largest suppliers Schedule. The provisions of the Company, on a consolidated basis, for each of the years ended on December 31, 2019 and the nine-months ended September 30, 2020). Except as would not this Section 3.8 shall be material limited to the Company, the Company has not received any written notice from any such customer or supplier that such customer or supplier intends to terminate, materially reduce, or not renew, its relationship with the Company. Except as set forth on Section 4.16(d) knowledge of the Company Disclosure Letter, the Company has not made any bid or proposal that is reasonably expected as they relate to be of a loss-making nature (that are known or likely to result in a loss to the Company) on completion of performance ascertained by reference to gross margin (direct and indirect labor, materials, and overheads in accordance with GAAP and past practices)its foreign Subsidiaries. (e) To the Company’s Knowledge, the Company is not, and no Subsidiary of the Company is, a party to a Contract that (i) contains “most favored nation” terms or conditions (including with respect to pricing), exclusivity obligations, or rights of first refusal or rights of first offer (or similar terms) or (ii) materially restricts the Company or any of its Affiliates from engaging in any material line of business, developing, marketing or distributing products or services, grants exclusive rights to any Person with respect to any product, service, or geographic area, or obligates the Company or any of its Affiliates not to compete with another Person or in any geographic area or during any period of time.