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.
Appears in 2 contracts
Sources: Merger Agreement (Goldfield Corp), Merger Agreement (Goldfield 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.
(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 ▇▇▇, 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.
Appears in 1 contract
Sources: Merger Agreement (Medicines Co /De)
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 filedfiled 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 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 surety bonds and any subcontractors for ongoing projects entered into in the ordinary course letters of businesscredit;
(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 interestsstock, properties, rights properties or assets of any Person or any real property (whether by merger, sale or purchase of equity interestsstock, sale or purchase of assets or otherwise) for, in each case, aggregate consideration of more than $100,000250,000, except for acquisitions and dispositions of properties and assets in the ordinary course of business (including Home Sale Contracts, Real Estate Purchase Agreements and any other Contracts executed in connection therewith in the ordinary course of business);
(iii) each Contract of the Company or any of the Company Subsidiaries (A) that grants a right of exclusivity, right of first offer, right of first refusal or similar right with respect to any business or geographic region (“Exclusive Rights”); (B) that (1) restricts in any way the ability of the Company or any of the Company Subsidiaries to compete with any business or in any geographical area or to solicit customers or (2) limits the right of the Company or any of its Subsidiaries to engage in any line of business; or (C) containing “most favored nation” or similar provisions; in each case under clauses (A), (B) or (C) that may not be canceled by the Company or any of the Company Subsidiaries upon notice of 90 days or less without material penalty or other material liability to the Acquired Companies, taken as a whole, in each case, other than customary confidentiality obligations;
(iv) each Contract to which the Company or any of the Company Subsidiaries is a party primarily involving the inbound or outbound licensing of any material Intellectual Property (except for (A) off-the-shelf licenses of commercially available Software, (B) agreements between the Company or any of the Company Subsidiaries, on the one hand, and their employees, contractors or consultants, on the other hand, entered into in the ordinary course of business and (C) non-exclusive licenses entered into in the ordinary course of business);
(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 securitiesassets of the Acquired Companies (excluding Real Estate Purchase Agreements, assets or Home Sale Contracts and any 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 Contracts executed in connection therewith in the ordinary course of business);
(vi) each Contract that involves the receipt of services or products to the Company or any Contract 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 capital expenditures or the acquisition or construction of fixed assets which requires annual aggregate future payments in excess of $200,00012 month period ended December 31, 2025 (“Material Suppliers”);
(vii) each Contract that is a settlement, conciliation or similar agreement with any Contract Governmental Authority involving (A) aggregate consideration of more than $250,000 or (B) pursuant to which the Company or any of its the Company Subsidiaries has entered into a partnership will have any material outstanding obligation after the date of this Agreement (other than customary confidentiality obligations) which would continue to apply to the Company or joint venture with any other personCompany Subsidiary following the Effective Time;
(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 executory 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 the Company Subsidiaries has submitted is a currently pending party that provides for any fee building arrangements;
(ix) any Contracts to which the Company 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 any of the date hereof, would reasonably be expected Company Subsidiaries is a party (A) with respect to become a legally binding obligation preferred lender arrangements or (B) with mortgage providers;
(x) each material Contract of the Company or such Subsidiary by the unilateral act(s) any of one or more Persons (other than the Company and its SubsidiariesSubsidiaries that relates to a partnership, joint venture or similar arrangement (each, a “Joint Venture Contract”);
(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, 2020each Land Banking Arrangement; 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 each power 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 restrictionsattorney. 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 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 (x) as such enforceability may be limited by the Bankruptcy and Equity Exceptions, except Exceptions and (y) where the any failure of such Contract to be valid, binding, enforceable or in full force and effect, has not been, and thereof would not reasonably be expected to be, individually or in the aggregate, material to the Acquired CompaniesCompany and its Subsidiaries, taken as a whole. None Except as set forth on Section 4.16(c) of the Company Disclosure Letter, 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 except, in each case as has not beencase, and where any failure thereof would not reasonably be expected to be, individually or in the aggregate, material to the Acquired CompaniesCompany and its Subsidiaries, taken as a whole. To Except as set forth on Section 4.16(c) of the Company Disclosure Letter, 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 each of clauses (i), (ii) and (iii), as has not been, and except where any failure thereof would not reasonably be expected to be, individually or in the aggregate, material to the Acquired CompaniesCompany and its Subsidiaries, 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.
Appears in 1 contract