Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”): (i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act); (ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business; (iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries; (iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty; (v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity; (vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries; (vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business; (viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (ix) each Company Real Estate Lease; (x) each Contract with any Governmental Body; (xi) each Company Out-bound License and Company In-bound License; (xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or (xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole. (b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 5 contracts
Sources: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than the Company or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into the Company or any Ordinary Course of its SubsidiariesBusiness;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable at will by the Company without notice, severance or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 4 contracts
Sources: Merger Agreement (Galecto, Inc.), Merger Agreement (Spyre Therapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.)
Agreements, Contracts and Commitments. Except as set forth in the ------------------------------------- Acquiror Schedules, neither Acquiror nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Acquiror's Board of the date of this Agreement (Directors, other than those that are terminable by Acquiror or any Company Benefit Plans) (eachof its subsidiaries on no more than thirty days notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Acquiror's or any of its subsidiaries' ability to terminate employees at will;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or guaranty not entered into in the Ordinary Course ordinary course of Businessbusiness other than indemnification agreements between Acquiror or any of its subsidiaries and any of its officers or directors;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, Acquiror or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or compete with any Person, (B) person or granting any “most-favored nations” pricing provisions or marketing or exclusive distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesrights;
(ive) each Contract relating to capital expenditures and requiring payments after the date of this Agreement any agreement, contract or commitment currently in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract force relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise;
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company joint marketing or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiariesagreement; or
(xiiig) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment described in Item 10 of more than $200,000 in Regulation S-K (whether or not a filing with the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that SEC requiring such document to be included as an exhibit is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoyet due). Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Acquiror nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Acquiror's knowledge any other party to a Company Material ContractAcquiror Contract (as defined below), has breached, violated or defaulted under, or received notice that it breached, has breached violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Acquiror or any of its subsidiaries is a party or by which it is bound of the type described in clauses (a) through (g) above (any such agreement, any Company Material Contract contract or commitment, an "ACQUIROR CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material Acquiror Contract, or would permit any other party to seek damages or pursue other legal remedies damages, which would be reasonably be expected likely to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAcquiror.
Appears in 4 contracts
Sources: Agreement and Plan of Reorganization (Rational Software Corp), Merger Agreement (Pure Atria Corp), Agreement and Plan of Reorganization (Rational Software Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) Company has made available to Parent true, correct and complete copies of all of the Company Disclosure Schedule lists following written contracts and agreements, and summaries of all of the following Company Contracts oral contracts and agreements, presently in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the which Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by is a party or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-it is bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each of which (other than operating leases as lessee with respect to real property) is listed in the Company Disclosure Schedule:
(a) each employment agreement (other than those that are terminable by Company or any of its Subsidiaries without cost or penalty upon sixty (60) days' or less notice);
(b) each operating lease, whether as lessor or lessee, with respect to any real property;
(c) each contract, whether as licensor or licensee, for the license of any patent, know-how, trademark, trade name, service ▇▇▇▇, copyright or other intangible asset (other than licenses of commercially available computer software);
(d) each loan or guaranty agreement, indenture or other instrument, contract or agreement under which any money has been borrowed or loaned within twenty-four months preceding the date of this Agreement, under which Company or any of its Subsidiaries has any continuing obligation or under which any note, bond or other evidence of indebtedness has been issued and remains outstanding;
(e) each mortgage, security agreement, conditional sales contract, capital lease or similar agreement which effectively creates a lien on any assets of Company or any of its Subsidiaries (other than any purchase money security interests granted in the ordinary course of business and any conditional sales contract, capital lease or similar agreement, in either case, which creates a lien only on tangible personal property);
(f) each contract restricting Company or any of its Subsidiaries in any material respect from engaging in business or from competing with any other parties (except those contained in operating leases of the nature referred to in clause (b) of this Section 4.12 under which Company or any of its Subsidiaries is a lessee);
(g) each plan of reorganization;
(h) each partnership or joint venture agreement;
(i) each collective bargaining agreement; and
(j) each other contract not made in the ordinary course of business which involves payments of $100,000 or more per year and is not terminable by Company or any of its Subsidiaries without cost or penalty upon sixty days' or less notice. All of the foregoing are hereinafter collectively called "MATERIAL CONTRACTS." Each Material Contract is valid, binding, enforceable and in full force and effect, subject to unless the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms failure of any Material Contracts to be in full force and effect has not had and would not have, individually or in the aggregate, a Company Material Contract to change, any material amount paid or payable to the Adverse Effect. Neither Company or nor any of its Subsidiaries nor, to the knowledge of Company, any other party is in breach of or in default under any Material Contract, except for breaches or defaults which have not had, and are not reasonably likely to have, individually or in the aggregate, a Company Material Contract Adverse Effect. Notwithstanding anything herein stated, no representation is made in this Agreement as to whether any lease of real property by Company or its Subsidiaries contains any other material term provision prohibiting or provision limiting, or providing that a breach or default thereunder shall occur in the event of, a change of any Company Material Contractcontrol or merger of the nature of the Acquisition.
Appears in 4 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Barnes & Noble Inc), Merger Agreement (Electronics Boutique Holdings Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) Neither Company nor any of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract that would be a material any employment or consulting agreement, contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements or commitment with any executive officer or member of the Exchange Act)Board of Directors of Company, other than those that are terminable by Company or any of its Subsidiaries on no more than thirty (30) days' notice without Liability or financial obligation to Company;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businessproducts or services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Company or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the disposition or acquisition by Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments Subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Company has any material assets or any ownership interest in any Entity;corporation, partnership, joint venture or other business enterprise other than its Subsidiaries; or
(vi) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;credit.
(viib) each Contract requiring payment by or to the Neither Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or nor any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services nor to the knowledge of Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material ContractContract (as defined below), has breachedis in breach, violated violation or defaulted default under, or and neither Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Company or any of its Subsidiaries is a party or by which Company or any of its Subsidiaries is bound that are required to be disclosed in the Company Schedules pursuant to this Agreement (any such agreement, any contract or commitment, a "Company Material Contract Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or pursue other legal material remedies which would reasonably be expected to be material to the Company (for any or its business all of such breaches, violations or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiatingdefaults, or has a right pursuant to all of them in the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 3 contracts
Sources: Merger Agreement (Quantum Corp /De/), Agreement and Plan of Merger and Reorganization (Quantum Corp /De/), Merger Agreement (Maxtor Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viiv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiv) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixvi) each Company Real Estate Lease;
(xvii) each Company Contract with any Governmental Body;
(xiviii) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights, other than Contracts containing standard form non-disclosure agreements or licenses for unmodified commercially available off the shelf software;
(xiiix) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(x) each Company Contract, offer letter, or employment agreement, or independent contractor agreement with any employee or service provider whose annual base compensation equals or exceeds $100,000 that (A) is not terminable on less than thirty (30) days’ advance notice the Company or otherwise subject to severance obligations, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that will become due as a result of its Subsidiariesthe Merger;
(xi) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xii) each Company Contract entered into in settlement of any Legal Proceeding or other dispute with respect to which the Company has any outstanding monetary obligations as of the Closing Date; orand
(xiii) any other Contract Company Contract, excluding Company Contracts relating to Company employees or independent contractors, that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 200,000 in the aggregate, or (B) that is material to the business or operations of the Company and its SubsidiariesCompany, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(a)(x) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Corvex, Inc.), Agreement and Plan of Merger (Movano Inc.), Merger Agreement (Movano Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.10(a) of the Company Disclosure Schedule lists Schedules sets forth a complete and accurate list of the following contracts and agreements (written or oral) to which the Company Contracts in effect as or any of its Subsidiaries is a party or by which the date of this Agreement (other than Company or any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):such Subsidiary is bound:
(i) each Contract that would be a material contract as defined any agreement (or group of related agreements) for the lease of real property or personal property from or to third parties providing for lease payments (A) in Item 601(b)(10excess of $50,000 per annum or (B) in excess of Regulation S-K as promulgated under $150,000 in the Securities Act (assuming aggregate for the Company was subject to the public reporting requirements remainder of the Exchange Act)term;
(ii) each Contract relating to any agreement (or group of indemnification related agreements) for the purchase or guaranty not sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year and involves more than $150,000, in the aggregate, or (B) which involves more than the sum of $50,000 per annum;
(iii) any agreement establishing a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Lien (other than Permitted Liens) on any of its assets, tangible or intangible;
(v) any employment, severance, bonus, retention or consulting agreement;
(vi) any agreement involving any officer or director of the Company;
(vii) any material license, sublicense or other agreement under which the Company or any Subsidiary of it is authorized to use or distribute any Third Party Intellectual Property in connection with, incorporated in or as part of, any product or service sold by or expected to be sold by the Company or any Subsidiary of it;
(viii) any material agreement granting or restricting the right of the Company to use any Company Intellectual Property other than license agreements entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (Dix) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any Subsidiary of its Subsidiaries has continuing obligations it granted or was granted exclusive marketing, distribution or sales rights with respect to develop any industry, customer segments, geographical area or market otherwise;
(x) any productagreement, technology commitment, judgment, injunction or service, or any agreement pursuant order to which the Company or any Subsidiary of its Subsidiaries it is a party or is subject to that has continuing obligations or would reasonably be expected to develop any Intellectual Property Rights that will not be owned, in whole have the effect of prohibiting or in part, by impairing the Company or any conduct of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology the business of the Company or any Subsidiary of its Subsidiaries or it in any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiariesmaterial respect, in each caseany geographic area, except for Contracts entered into in the Ordinary Course any period of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;time; and
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend agreement under which the consequences of a default or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 termination would reasonably be expected to result in the aggregate, or obligations after the date of this Agreement losses in excess of $500,000 in 100,000 ((i) through (xi) collectively, the aggregate, or (B) that is material “Company Material Contracts”). The Company has provided to the business or operations Buyer a complete and accurate copy of each Company Material Contract. Each Company Material Contract is in full force and effect and is enforceable in accordance with its terms. Neither the Company and its Subsidiariesnor any Subsidiary of it nor, taken as to the Company’s knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a wholeviolation of or default under) any Company Material Contract.
(b) The Company has delivered or made available to Parent accurate SEC Reports and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b3.10(b) of the Company Disclosure ScheduleSchedule disclose each contract or agreement to which the Company or any Subsidiary of it is a party or bound with any Affiliate of the Company (other than any Subsidiary which is a direct or indirect wholly owned Subsidiary of the Company). Complete and accurate copies of all the agreements, there are no contracts and arrangements have heretofore been provided to the Buyer. Except as disclosed in the Company Material Contracts that are not in written form. As of SEC Reports filed prior to the date of this Agreement, none neither the Company nor any Subsidiary of the Company, it has entered into any transaction with any Affiliate of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business any Subsidiary of it or operations. As any transaction that would be subject to the Company and its Subsidiaries, as proxy statement disclosure pursuant to Item 404 of the date Regulation S-K. For purposes of this Agreement, each the term “Affiliates” when used with respect to any party shall mean any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(c) Following the Closing, the Surviving Corporation will be permitted to exercise all of the Company’s rights under the Company Material Contract is valid, binding, enforceable and in full force and effect, subject Contracts to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to same extent that the Company or any would have been able to had the Merger not occurred and without the payment of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractadditional consideration.
Appears in 3 contracts
Sources: Merger Agreement (Infospace Inc), Merger Agreement (Infospace Inc), Merger Agreement (Epresence Inc)
Agreements, Contracts and Commitments. (a) Except as disclosed in the Players SEC Reports or as disclosed in Section 2.14(a3.11(a) of the Company Players Disclosure Schedule lists the following Company Contracts in effect Schedule, as of the date of this Agreement (other than Agreement, neither Players nor any Company Benefit Plans) (each, of its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):
party to any oral or written (i) each Contract that agreement, contract, indenture or other instrument relating to Indebtedness (as defined below) in an amount exceeding $1,000,000, (ii) partnership, joint venture or limited liability or management agreement with any person, (iii) agreement, contract, or other instrument relating to any merger, consolidation, business combination, share exchange, business acquisition, or for the purchase, acquisition, sale or disposition of any material assets of Players or any of its Subsidiaries outside the ordinary course of business, (iv) other contract, agreement or commitment to be performed after the date hereof which would be a material contract (as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange ActSEC);
, (iiv) each Contract agreement, contract, or other instrument relating to any "strategic alliances" (i.e., cross-marketing, affinity relationship, etc.), (vi) contract, agreement or commitment which materially restricts (geographically or otherwise) the conduct of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Players or any of its Subsidiaries, (vii) any contract, agreement or other instrument having as a party a partnership, joint venture or limited liability company in each casewhich Players or any of its Subsidiaries is a partner, except for Contracts entered into joint venture party or member which would otherwise satisfy the criteria in the Ordinary Course clauses (i), (iii), (iv), (v) or (vi) if Players or any of Business;
its Subsidiaries were a party to such contract, agreement or other instrument or (viii) each Contract with any Personother material contract requiring annual or remaining payments in excess of $250,000 after the date hereof and which is not cancelable on less than 30 days' notice (collectively, including the "Players Material Contracts"). "Indebtedness" means any financial advisorliability in respect of (A) borrowed money, broker(B) capitalized lease obligations, finder, investment banker (C) the deferred purchase price of property or services (other Person, providing advisory services to than trade payables in the Company in connection with the Contemplated Transactions;
ordinary course of business) and (ixD) each Company Real Estate Lease;
(x) each Contract with guarantees of any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company foregoing incurred by any other person other than Players or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Players International Inc /Nv/), Merger Agreement (Jackpot Enterprises Inc), Merger Agreement (Kornstein Don R)
Agreements, Contracts and Commitments. (a) Section 2.14(a4.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement Date (other than any Company Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Each Company Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Company Contract the primary purpose of which is relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course ordinary course of Businessbusiness;
(iii) each Company Contract containing (A) any covenant limiting the freedom of the Company, Company or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions provision applicable to the Company or any of its Subsidiaries;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement Date in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement Date in excess of $200,000 50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course ordinary course of Businessbusiness;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Company Contract with any Governmental BodyEntity;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement Date under any such agreement, contract or commitment Company Contract of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b4.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementAgreement Date, none of the Company, any of its Subsidiaries, Subsidiaries nor, to the Company’s Knowledgeknowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability ExceptionsBankruptcy, Equity and Indemnity Exception. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (XOMA Royalty Corp), Agreement and Plan of Merger (Turnstone Biologics Corp.), Agreement and Plan of Merger (Turnstone Biologics Corp.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.14 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesParent;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, ▇▇▇▇▇▇ and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeParent.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, neither Parent nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)
Agreements, Contracts and Commitments. The following agreements, ------------------------------------- contracts or commitments with respect to which Oplink or one of its subsidiaries is a party or is bound are referred to herein as the "Oplink Contracts":
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Oplink's Board of the date of this Agreement (Directors, other than those that are terminable by Oplink or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Oplink;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesssoftware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Oplink or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Oplink or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of assets in excess of $200,000 250,000 not in the ordinary course of business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Oplink has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Oplink's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing, alliance, development or other agreement currently in force under which Oplink or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service, or any material agreement pursuant to which Oplink or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Oplink or any of its subsidiaries;
(g) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Oplink product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Oplink products or service except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Avanex;
(h) any agreement, contract or commitment currently in force to provide source code to any third party, including any escrow agent, for any product or technology that is material to Oplink and its subsidiaries taken as a whole;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 (i) in connection with or pursuant to which Oplink and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current fiscal year or obligations after during the date of this Agreement in excess of $500,000 in the aggregatenext fiscal year, or (Bii) that is a material to the business or operations contract (as defined in Item 601(b)(10) of Regulation S-K of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoSEC rules). Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Oplink nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Oplink's Knowledge any other party to a Company Material Oplink Contract, has breachedis in material breach, violated violation or defaulted default under, or and neither Oplink nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of, or Laws applicable to, of any Company Material Oplink Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Oplink Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Oplink Communications Inc), Agreement and Plan of Reorganization (Avanex Corp), Agreement and Plan of Reorganization (Avanex Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit Plans) Plans (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting in any material respect the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than Parent or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, option to receive a license, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than Parent, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into in the Company or any Ordinary Course of its SubsidiariesBusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable by Parent without notice, severance, or other cost or liability, except as required under applicable Law, or (B) provides for retention payments, change-of-control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger;
(xiv) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xv) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute;
(xvi) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License; and
(xvii) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Spyre Therapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 4.13 of the Company Parent Disclosure Schedule lists the following Company Contracts Letter identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a an “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Parent Contract that would be a relating to any material contract as defined in Item 601(b)(10) of Regulation Sbonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(ii) each Parent Contract requiring payments by Parent after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Parent Associate providing employment related, consulting or independent contractor services, not terminable by Parent on thirty (30) calendar days’ or less notice without liability;
(iii) each Parent Contract relating to any agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iv) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Parent’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement non-solicitation provision;
(vi) each Parent Contract (A) pursuant to purchase minimum quantity of goods or serviceswhich any Person granted Parent an exclusive license under any Intellectual Property, or (EB) pursuant to which Parent granted any material non-solicitation provisions applicable to Person an exclusive license under any Parent IP Rights;
(vii) each Parent Contract containing any royalty, dividend or similar arrangement based on the Company revenues or profits of Parent, any of its Subsidiaries, or of a product;
(ivviii) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(vix) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000 after the date of this Agreement;
(vix) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute pursuant to which Parent or any of its Subsidiaries has outstanding obligations to pay consideration in excess of $100,000;
(xi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viixii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Parent, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; such Subsidiary or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Parent Contracts entered into in the Ordinary Course of Business;
(viiixiii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated TransactionsTransactions and requiring payments by Parent after the date in this Agreement in excess of $100,000 pursuant to its express terms;
(ixxiv) each Company Parent Contract to which Parent or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound (other than Parent Real Estate Leases), which involves annual obligations of payment by, or annual payments to, Parent or such Subsidiary in excess of $100,000;
(xv) any Parent Real Estate Lease;
(xxvi) each a Contract with any Governmental Body;
(xidisclosed in or required to be disclosed in Section 4.12(b) each Company Out-bound License and Company In-bound License;
(xiior Section 4.12(c) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent Disclosure Letter; or
(xiiixvii) any other Parent Contract (other than Parent Real Estate Leases) that is not terminable at will (with no penalty or payment) by the Company Parent or any of its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, Subsidiaries taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit a manner, and, if such Parent Material Contract provides for a cure period, Parent or such other party fails to have cured such breach, violation or default, so that any other party or Parent, as the case may be, is permitted to modify, cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Parent Material Adverse Effect. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (Pulmatrix, Inc.), Merger Agreement (VYNE Therapeutics Inc.), Merger Agreement (Pulmatrix, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit Plans) Plans (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights, other than Contracts containing standard form non-disclosure agreements or licenses for unmodified commercially available off the shelf software;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or independent contractor agreement with any employee or service provider whose annual compensation equals or exceeds $100,000 that (A) is not immediately terminable by Parent without notice, severance, or other cost or liability, except as required under applicable Law, or (B) provides for retention payments, change-of-control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger;
(xiv) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xv) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License; or
(xvi) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Corvex, Inc.), Agreement and Plan of Merger (Movano Inc.), Merger Agreement (Movano Inc.)
Agreements, Contracts and Commitments. Part 3.7 of the Tigris Disclosure Schedule identifies:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each Tigris Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)employee benefit plans or arrangements;
(iib) each Tigris Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Tigris or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit Tigris’ or its Subsidiaries’ ability to terminate employees at will;
(c) each Tigris Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Tigris Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Tigris and any of its officers or directors;
(iiie) each Tigris Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyTigris, its Subsidiaries a Tigris Subsidiary or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivf) each Tigris Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(vg) each Tigris Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vih) each Tigris Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company Tigris or any of its Subsidiaries a Tigris Subsidiary or any loans or debt obligations with officers or directors of the Company Tigris or any of its Subsidiariesa Tigris Subsidiary;
(viii) each Tigris Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Tigris or any of its Subsidiaries; a Tigris Subsidiary (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Tigris or any of its Subsidiaries a Tigris Subsidiary has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Tigris or any of its Subsidiaries a Tigris Subsidiary has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Tigris or any of its Subsidiariesa Tigris Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any product, service or technology of the Company Tigris or any of its Subsidiaries a Tigris Subsidiary or any Contract currently in force to sell, distribute or commercialize any products or service of the Company Tigris or any of its Subsidiaries, in each case, a Tigris Subsidiary except for Contracts entered into agreements with distributors or sales representatives in the Ordinary Course of Business;
(viiij) each Tigris Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Tigris or a Tigris Subsidiary in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiik) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company Tigris or its Subsidiaries after the date of this Agreement a Tigris Subsidiary under any such agreement, contract or commitment of $100,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (Bii) that is material to the business or operations of the Company Tigris and its Subsidiaries, taken as a whole.
(b) The Company . Tigris has delivered or made available to Parent Potomac accurate and complete (except for applicable redactions thereto) copies of all Company Tigris Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Tigris Material Contracts that are not in written form. As Except as set forth on Part 3.7 of the Tigris Disclosure Schedule, neither Tigris nor any Tigris Subsidiary, nor to the Knowledge of Tigris, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Tigris Material ContractContract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Tigris is a party or by which it is bound of the type described in clauses (a) through (j) above (any such agreement, any Company contract or commitment, a “Tigris Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Tigris Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Tigris Material Adverse Effect. As to the Company and its Subsidiaries, as The consummation of the date Contemplated Transactions shall not (either alone or upon the occurrence of this Agreement, each Company Material Contract is valid, binding, enforceable and additional acts or events) result in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid payment or payable payments becoming due from Tigris, a Tigris Subsidiary or the Surviving Corporation to the Company or any of its Subsidiaries Person under any Company Material Contract or any other material term or provision of any Company Material Tigris Contract.
Appears in 2 contracts
Sources: Merger Agreement (InterWest Partners IX, LP), Merger Agreement (Transcept Pharmaceuticals Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision, in each case, except for restrictions that would not materially affect the ability of Parent to the Company or any of conduct its Subsidiariesbusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000, other than Parent Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to ▇▇▇ or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; orParent;
(xiii) each (A) Parent Contract, offer letter, employment agreement or other agreement with any employee that (1) is not immediately terminable at will by Parent without advance notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event) and (B) each Parent Contract, independent contractor agreement, or other agreement with any consultant or service provider that (1) is not immediately terminable at will by the Company without more than thirty (30) days’ prior notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event);
(xiv) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License;
(xv) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xvi) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeParent.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Other than as set forth in Section 3.13(b) of the Parent Disclosure Schedule, Parent has not, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Rexahn Pharmaceuticals, Inc.), Merger Agreement (Rexahn Pharmaceuticals, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Parent Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company Parent or any of its Subsidiaries;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Parent Contract requiring payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 400,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; orand
(xiii) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment Contract of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 300,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, norSubsidiaries or, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (MorphImmune Inc.), Merger Agreement (Immunome Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.12(a) of the Company Disclosure Schedule Letter lists the following Company Contracts in effect as of the date of this Agreement (other than any or which will be assigned to the Company Benefit Plans) in connection with the transactions contemplated by the Contribution Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming requiring payments by the Company was subject after the Closing Date in excess of one hundred fifty thousand dollars ($150,000) pursuant to its express terms relating to the public reporting requirements employment of, or the performance of the Exchange Act)employment-related services by, any Company Associate providing employment-related, consulting or independent contractor services, not terminable by Parent on thirty (30) calendar days’ or less notice without liability;
(ii) each Company Contract relating to any agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased or guaranty not entered into the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the Ordinary Course value of Businessany of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iii) each Company Contract containing containing, with respect to the Company Business, (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (including the Company Product) (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of one hundred and fifty thousand dollars ($200,000 150,000) pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract (A) relating to the any partnership or joint venture or (B) relating to any disposition or acquisition of (x) material assets involving payments in excess of one hundred fifty thousand dollars ($150,000) after the date of this Agreement or with respect to which the Company has any material ongoing obligations or (y) any ownership interest in any Entity;
(vi) each Company Contract entered into in settlement of any Legal Proceeding or other dispute pursuant to which the Company or any of its Subsidiaries has outstanding obligations to pay consideration in excess of one hundred and fifty thousand dollars ($150,000);
(vii) each Company Contract relating to any mortgages, indentures, loans, notes or notes, credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of one hundred and fifty thousand dollars ($150,000) or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiviii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of two hundred and fifty thousand dollars ($200,000 250,000) pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any Patent, Mark or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiiix) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixx) each Company Real Estate Lease;
Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of one hundred and fifty thousand dollars (x) each Contract with any Governmental Body;$150,000); and
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than one hundred and fifty thousand dollars ($200,000 150,000) in the aggregate, or obligations after the date of this Agreement in excess of one hundred and fifty thousand dollars ($500,000 150,000) in the aggregate, aggregate or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeBusiness.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Seller nor any of its SubsidiariesAffiliates (with respect to the Company Business) nor the Company has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit a manner, and, if such Company Material Contract provides for a cure period, Seller or one of its Affiliates (including the Company) or such other party fails to have cured such breach, violation or default, so that any other party or the Company, as the case may be, is permitted to modify, cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Sources: Share Purchase Agreement (Oramed Pharmaceuticals Inc.), Share Purchase Agreement (Lifeward Ltd.)
Agreements, Contracts and Commitments. Part 2.9 of the Potomac Disclosure Schedule identifies, except for Potomac Contracts set forth in Part 2.13 of the Potomac Disclosure Schedule:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each Potomac Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)employee benefit plans or arrangements;
(iib) each Potomac Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, not terminable by Potomac or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit Potomac’s, Potomac’s Subsidiaries’ or such successor’s ability to terminate employees at will;
(c) each Potomac Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Potomac Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Potomac and any of its respective officers or directors;
(iiie) each Potomac Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyPotomac, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivf) each Potomac Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(vg) each Potomac Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vih) each Potomac Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company Potomac or any of its Subsidiaries Potomac Subsidiary or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesPotomac;
(viii) each Potomac Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Potomac (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Potomac or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Potomac or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Potomac or any of its Subsidiariessuch Potomac Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any Potomac product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Potomac products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiij) each Potomac Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Potomac in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiik) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company Potomac or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $100,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (Bii) that is material to the business or operations of the Company Potomac and its Subsidiaries, taken as a whole.
(b) The Company . Potomac has delivered or made available to Parent Tigris accurate and complete (except for applicable redactions thereto) copies of all Company Potomac Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Potomac Material Contracts that are not in written form. As Except as set forth on Part 2.9 of the Potomac Disclosure Schedule, neither Potomac nor any of its Subsidiaries has, nor to Potomac’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Potomac Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Potomac or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, any Company contract or commitment, a “Potomac Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Potomac Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Potomac Material Adverse Effect. As to the Company Potomac and its Subsidiaries, as of the date of this Agreement, each Company Potomac Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the Enforceability Exceptionsrelief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not result in any material payment or payments becoming due from Potomac, any Potomac Subsidiary, the Surviving Corporation or Tigris to any Person under any Potomac Contract or give any Person the right to terminate or alter the provisions of any Potomac Contract. No Person is renegotiating, or has a right pursuant to the terms of any Company Potomac Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Potomac under any Company Potomac Material Contract or any other material term or provision of any Company Potomac Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (InterWest Partners IX, LP), Merger Agreement (Transcept Pharmaceuticals Inc)
Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Apex's Board of the date of this Agreement (Directors, other than those that are terminable by Apex or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Apex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesscomputer or communications hardware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Apex or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Apex or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Apex has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Cybex;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess that has a value of $500,000 in the aggregate, 1,000,000 or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretomore individually. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Apex nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Apex's knowledge any other party to a Company Material Contractan Apex Contract (as defined below), has breachedis (or with nothing more than notice and/or the passage of time will be) in breach, violated violation or defaulted default under, or and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, any Company Material Contract contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material Apex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operationsaggregate). As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Each Apex Contract is valid, binding, enforceable and in full force and effect, subject and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the Enforceability Exceptions. No Person knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is renegotiatingconsidered in a proceeding in equity or at law) and (b) as would not, individually or has in the aggregate, be reasonably expected to result in a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Apex.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Cybex Computer Products Corp), Agreement and Plan of Reorganization (Apex Inc)
Agreements, Contracts and Commitments. The following agreements, ------------------------------------- contracts or commitments with respect to which Avanex or one of its subsidiaries is a party or is bound are referred to herein as the "Avanex Contracts":
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Avanex's Board of the date of this Agreement (Directors, other than those that are terminable by Avanex or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Avanex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesssoftware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Avanex or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Avanex or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of assets in excess of $200,000 250,000 not in the ordinary course of business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Avanex has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Avanex's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing, alliance, development or other agreement currently in force under which Avanex or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service, or any material agreement pursuant to which Avanex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Avanex or any of its subsidiaries; .
(g) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Avanex product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Avanex products or service, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Oplink;
(h) any agreement, contract or commitment currently in force to provide source code to any third party, including any escrow agent, for any product or technology that is material to Avanex and its subsidiaries taken as a whole;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 (i) in connection with or pursuant to which Avanex and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current fiscal year or obligations after during the date of this Agreement in excess of $500,000 in the aggregatenext fiscal year, or (Bii) that is a material to the business or operations contract (as defined in Item 601(b)(10) of Regulation S-K of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoSEC rules). Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Avanex nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Avanex's Knowledge any other party to a Company Material ContractAvanex Contract is in material breach, has breached, violated violation or defaulted default under, or and neither Avanex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of, or Laws applicable to, of any Company Material Avanex Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Avanex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Avanex Corp), Agreement and Plan of Reorganization (Avanex Corp)
Agreements, Contracts and Commitments. (a) Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended July 31, 2005 (“SEC Contracts”), or as disclosed in Section 2.14(a) 4.12 of the Company’s Disclosure Letter, neither the Company Disclosure Schedule lists nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following Company Contracts in effect as of the date of this Agreement nature (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any PersonContracts, (Bother than Licensed Intellectual Property) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to that involve the performance by the Company or any of its Subsidiaries;
Subsidiaries of services of an amount or value (ivas measured by the revenue derived therefrom during the fiscal year ended July 31, 2005) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to 4 million annually, unless terminable by the Company or its express terms and not cancelable Subsidiaries without material penalty;
(vii) each Contract relating to Contracts (A) for the disposition or acquisition sale of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries involving aggregate consideration of $1 million or more (other than this Agreement and licenses of Products in the ordinary course of business), or (B) for the grant to any Person of any preferential rights to purchase any material amount of assets or any loans or debt obligations with officers or directors material asset of the Company or any of its Subsidiaries;
(viiiii) each Contract requiring payment Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, any business or Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice);
(iv) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities Indebtedness of the Company or any its Subsidiaries (excluding trade payables arising in the ordinary course of its Subsidiaries; (C) any dealerbusiness consistent with past practice, distributorintercompany indebtedness whether or not shown on the Company’s balance sheet as of January 31, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently 2006 included in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any productSEC Documents and immaterial leases for telephones, technology or servicecopy machines, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessfacsimile machines and other office equipment);
(viiiv) each Contract with Contracts relating to material loans or advances (other than advances to employees in the ordinary course of business), or investments in, any Person, including any financial advisor, broker, finder, investment banker or Person (other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by than the Company or its Subsidiaries), as applicableor Contracts relating to the making of any such loans, and advances or investments or any Contracts involving a sharing of profits (Aother than bonus arrangements with employees entered into in the ordinary course of business consistent with past practice);
(vi) Contracts which create in writing a joint venture, partnership or similar arrangement (including any franchising agreement) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole;
(vii) Contracts relating to any material Company Permits;
(viii) Contracts containing covenants purporting to materially restrict the Company or any of its Subsidiaries from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business;
(ix) Contracts providing for exclusive arrangements between the Company or any of the Subsidiaries and any other Person to license, sublicense, sell, use or distribute any of the Products;
(x) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xi) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act.
(b) The Company has delivered Except as would not reasonably be expected to result, individually or made available to Parent accurate and complete copies of all in the aggregate, in a Company Material ContractsAdverse Effect, including all amendments thereto. Except as set forth (i) neither the Company nor any or its Subsidiaries is in Section 2.14(bbreach under any Company Material Contract, and (ii) each Company Material Contract is in full force and effect, is a valid and binding obligation of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As or the Subsidiary of the date of this Agreement, none of the Company, any of its Subsidiaries, norCompany party thereto and, to the Company’s Knowledge, any each other party thereto, except to a Company Material Contractthe extent that (A) enforceability may be subject to or otherwise limited by applicable bankruptcy, has breached, violated or defaulted underinsolvency, or received notice that it breachedother similar laws, violated now or defaulted underhereinafter in effect, any affecting creditors’ rights generally or the remedy of specific performance, or (B) specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the terms or conditions of, or Laws applicable to, court before which any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably proceeding therefore may be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractbrought.
Appears in 2 contracts
Sources: Merger Agreement (Ssa Global Technologies, Inc), Merger Agreement (Magellan Holdings, Inc.)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 2.14(a) of the Company Disclosure Schedule lists (specifying the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (eachappropriate paragraph), no Acquired Entity is a “Company Material Contract” and collectivelyparty to, the “Company Material Contracts”):or bound by:
(i) each (A) any employment, contractor or consulting Contract that would be a material contract as defined with an employee or individual consultant, contractor or salesperson, or (B) any Contract to grant any severance or termination pay (in Item 601(b)(10cash or otherwise) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any employee or any contractor;
(ii) each Contract relating to any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of indemnification the benefits of which will be increased, or guaranty not entered into in the Ordinary Course vesting of Businessbenefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries fidelity or the Surviving Corporation to engage in any line of business surety bond or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariescompletion bond;
(iv) each any Lease Agreement;
(v) any lease of personal property having an individual value in excess of $5,000;
(vi) any guaranty (excluding, for clarity, Acquired Entity Product warranties provided to customers in the ordinary course of business) or standalone agreement of indemnification;
(vii) any Contract relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty10,000 individually or $30,000 in the aggregate;
(vviii) each any Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the Acquired Entities’ businesses;
(viix) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each any Contract with (including purchase orders) that involves performance of services or delivery of goods or materials by or to any Governmental BodyAcquired Entity of an amount or value in excess of $10,000 individually or $30,000 in the aggregate;
(xi) each Company Out-bound License and Company In-bound Licenseany joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement or outsourcing agreement other than consulting agreements substantially in the form of the Consultant Proprietary Information Agreement;
(xii) each Contract containing any royaltyhedging, dividend swap, derivative, ISDA or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; orContract;
(xiii) any dealer, distribution, sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor or other Contract that is not terminable at will (with no penalty for use or payment) by distribution of the Company products, technology or its Subsidiaries, as applicable, and (A) which involves payment or receipt by services of the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement Acquired Entities involving future payments in excess of $500,000 10,000 individually;
(xiv) any nondisclosure, confidentiality or similar agreement other than non-material nondisclosure, confidentiality or similar agreements entered into in the aggregateordinary course of business and materially similar in substance to the Company’s applicable Standard Form Agreement(s);
(xv) any Contract containing “most-favored nation” pricing or similar pricing terms;
(xvi) any Contract limiting the Company’s ability to engage in any business anywhere in the world, or otherwise providing for or relating to “non-competition”; or
(Bxvii) any other Contract that involves $10,000 individually or $30,000 in the aggregate or more and is material to the business or operations of the Company and its Subsidiaries, taken as a wholenot cancelable without penalty within 30 days.
(b) The Company has delivered or made available to Parent accurate true and complete copies of each Contract that has been requested by Parent or its counsel, which shall be deemed to include, but shall not be limited to, all Company Contracts required to be disclosed pursuant to Sections 2.3, 2.11, 2.12, 2.13(a) (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement), 2.13(a) and 2.15 and each of the other documents listed on the Disclosure Schedule. Each Contract disclosed pursuant to Sections 2.3, 2.11, 2.12, 2.13(a) and 2.13(a), 2.15 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement) shall be referred to herein as a “Material Contract” and collectively, as the “Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b.”
(c) of the Company Disclosure Schedule, there are no Company Each Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Contract to which any Acquired Entity is a party or any of its Subsidiariesproperties or assets (whether tangible or intangible) is subject is a valid and binding agreement of such Acquired Entity, norand, to the Company’s KnowledgeKnowledge of the Acquired Entities and the Founders, any each other party thereto, enforceable against such Acquired Entity, and, to the Knowledge of the Acquired Entities and the Founders, each other party thereto, in accordance with its terms, and is in full force and effect with respect to such Acquired Entity and, to the Knowledge of the Acquired Entities and the Founders, each other party thereto, subject to (i) laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Each Acquired Entity that is a party to a Company Material Contract, Contract is in compliance in all material respects with and has not materially breached, violated or defaulted under, or received written (or to the Knowledge of the Acquired Entities and the Founders, oral) notice that it has breached, violated or defaulted under, any of the terms or conditions ofof such Material Contract. To the Knowledge of the Acquired Entities and the Founders (i) no party is obligated to the applicable Acquired Entity pursuant to any Material Contract that is subject to any material breach, violation or default thereunder, and (ii) there is no presently existing fact or circumstance that, with or without the lapse of time, giving of notice, or Laws applicable toboth would constitute such a material breach, any Company Material Contract in violation or default by such manner as would permit any other party to cancel Acquired Entity or terminate any such Company Material Contract, or would permit any other party party.
(d) Each Acquired Entity has performed all material obligations required to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right have been performed by such Acquired Entity pursuant to the terms of any Company each Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision which such Acquired Entity is a party.
(e) All outstanding Indebtedness for borrowed money of any Company Material ContractAcquired Entity may be prepaid without penalty.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Cornerstone OnDemand Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a) 4.23 of the Company Disclosure Schedule lists Letter, neither the following Company Contracts in effect as nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10any lease or sublease (whether of real or personal property) providing for annual rentals of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)$250,000 or more;
(ii) each Contract relating to any agreement for the purchase or license of indemnification materials, supplies, goods, services, equipment or guaranty not entered into in other tangible or intangible assets providing for either (A) annual payments by the Ordinary Course Company or its Subsidiaries of Business$250,000 or more or (B) aggregate payments by the Company or its Subsidiaries of $250,000 or more;
(iii) each Contract containing any license, sales, distribution or other similar agreement (other than agreements with end user customers or agreements to provide services entered into in the ordinary course of business) providing for the sale or license by the Company or any of its Subsidiaries of software, materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to the Company or its Subsidiaries of $250,000 or more or (B) aggregate payments to the Company and the Subsidiaries of $250,000 or more;
(iv) any covenant limiting material partnership, joint venture, development, alliance, agency, dealer, sales representative, marketing, distribution, original equipment manufacturer, value added reseller, remarketer, joint marketing, channel partner or other similar agreement or arrangement;
(v) any agreement, contract or commitment relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $250,000 and which may be prepaid on not more than 30 days notice without the payment of any penalty;
(vii) except for end-user licenses granted to customers by the Company or its Subsidiaries in the ordinary course of business consistent with past practices, any material option (other than employee stock options), license or franchise;
(viii) any software development agreement or other agreement for development or authorship of products and services for the Company or any of its Subsidiaries other than agreements with employees and consultants entered into by the Company or its Subsidiaries in the ordinary course of business;
(ix) any agreement that limits the freedom of the Company, its Subsidiaries Company or the Surviving Corporation any Subsidiary to engage compete in any line of business or compete with any Person, (B) Person or in any “most-favored nations” pricing provisions geographic area or marketing or distribution rights related which would reasonably be expected to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity so limit the freedom of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesSubsidiary after the Effective Time, including without limitation any agreements containing "most favored nations" or other similar clauses;
(ivx) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other written agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any credit, other than those mortgages, indentures, loans or debt obligations with officers credit agreements, security agreements or directors of other agreements or instruments that are not, individually or in the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or aggregate, material to the Company or any Subsidiary of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: Company;
(Axi) any distribution material agreement (identifying with any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities Affiliate of the Company (or any of its Subsidiaries; (C) Subsidiary), with any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development director or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service Officer of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract or with any Person, including "associate" or any financial advisor, broker, finder, investment banker member of the "immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any such director or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;Officer; or
(xii) each Contract containing any royalty, dividend agreement with change in control or similar arrangement based on the revenues arrangements, that will result in any obligation (absolute or profits contingent) of the Company or any Subsidiary to make any payment as a result of its Subsidiariesthe consummation of the Merger; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract commitment, arrangement or commitment of more than $200,000 plan not made in the aggregate, or obligations after the date ordinary course of this Agreement in excess of $500,000 in the aggregate, or (B) business that is material to the business or operations of the Company and its Subsidiaries, taken as a wholewhole other than agreements with end user customers entered into in the ordinary course of business, involving annual payments to the Company and its Subsidiaries in excess of $250,000.
(b) The Each agreement, contract, instrument, plan, lease, arrangement or commitment disclosed or required to be disclosed pursuant to this Section 4.23 is referred to as a "Scheduled Agreement" and is a valid and binding agreement of the Company has delivered or made available its Subsidiaries, as the case may be, and is in full force and effect with respect to Parent accurate and complete copies the Company or any Subsidiary of all Company Material Contracts, including all amendments theretothe Company. Except as set forth in on Section 2.14(b4.23(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementLetter, none of the Company, any Subsidiary of its Subsidiaries, northe Company or, to the Knowledge of the Company’s Knowledge, any other party to a Company Material Contractany Scheduled Agreement is in default, has breachedviolation or breach in any material respect under the terms of any such Scheduled Agreement, violated or defaulted underand, or received notice that it breached, violated or defaulted under, any to the Knowledge of the terms Company, no event or conditions ofcircumstance has occurred that, with notice or Laws applicable tolapse of time or both, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be constitute a material event of default thereunder. With respect to real property leases set forth on Section 4.23 of the Company Disclosure Letter:
(i) there are no disputes, oral agreements or forbearance programs in effect as to the Company lease or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to sublease;
(ii) the Company or any of its Subsidiaries under has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any Company Material Contract interest in the leasehold or any subleasehold;
(iii) to the Knowledge of the Company, all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and permits) required in connection with the operation thereof and been operated and maintained in accordance with applicable laws, rules and regulations; and
(iv) all facilities leased or subleased thereunder are supplied with utilities and all other material term services necessary for the operation of the Company's or provision each of any Company Material Contractits Subsidiaries' business as currently conducted and as currently proposed to be conducted and for the operation of said facilities. True and complete copies of each Scheduled Agreement have been made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Computer Network Technology Corp), Merger Agreement (McData Corp)
Agreements, Contracts and Commitments. Neither Cybex nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Cybex's Board of the date of this Agreement (Directors, other than those that are terminable by Cybex or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Cybex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesscomputer or communications hardware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Cybex or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business, conduct business in any geographical area or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Cybex or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Cybex has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Cybex's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Cybex or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Cybex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Cybex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Cybex and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Cybex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Cybex products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Apex;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess that has a value of $500,000 in the aggregate, 1,000,000 or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretomore individually. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Cybex nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Cybex's knowledge any other party to a Company Material ContractCybex Contract (as defined below), has breachedis (or with nothing more than notice and/or the passage of time will be) in breach, violated violation or defaulted default under, or and neither Cybex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Cybex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Cybex Schedules (any such agreement, any Company Material Contract contract or commitment, a "CYBEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material Cybex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operationsaggregate). As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Each Cybex Contract is valid, binding, enforceable and in full force and effect, subject and is a legal, valid and binding obligation of Cybex or a subsidiary of Cybex and, to the Enforceability Exceptions. No Person knowledge of Cybex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is renegotiatingconsidered in a proceeding in equity or at law) and (b) as would not, individually or has in the aggregate, be reasonably expected to result in a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Cybex.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Cybex Computer Products Corp), Agreement and Plan of Reorganization (Apex Inc)
Agreements, Contracts and Commitments. (a) Except as disclosed in the Buyer SEC Reports or as disclosed in Section 2.14(a4.11(a) of the Company Buyer Disclosure Schedule lists the following Company Contracts in effect Schedule, as of the date of this Agreement (other than Agreement, neither Buyer nor any Company Benefit Plans) (each, of its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):
party to any oral or written (i) each Contract that agreement, contract, indenture or other instrument relating to Indebtedness in an amount exceeding $1,000,000, (ii) partnership, joint venture or limited liability or management agreement with any person, (iii) agreement, contract, or other instrument relating to any merger, consolidation, business combination, share exchange, business acquisition, or for the purchase, acquisition, sale or disposition of any material assets of Buyer or any of its Subsidiaries outside the ordinary course of business, (iv) other contract, agreement or commitment to be performed after the date hereof which would be a material contract (as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange ActSEC);
, (iiv) each Contract agreement, contract, or other instrument relating to any "strategic alliances" (i.e., cross-marketing, affinity relationship, etc.), (vi) contract, agreement or commitment which materially restricts (geographically or otherwise) the conduct of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Buyer or any of its Subsidiaries, in each case(vii) any contract, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker agreement or other Personinstrument having as a party a partnership, providing advisory services to the Company joint venture or limited liability company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company which Buyer or any of its Subsidiaries; or
Subsidiaries is a partner, joint venture party or member which would otherwise satisfy the criteria in clauses (xiiii), (iii), (iv), (v) or (vi) if Buyer or any of its Subsidiaries were a party to such contract, agreement or other instrument or (viii) any other Contract that material contract requiring annual or remaining payments in excess of $250,000 after the date hereof and which is not terminable at will cancelable on less than 30 days' notice (with no penalty or paymentcollectively, the "Buyer Material Contracts").
(b) by Except as disclosed in the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after Buyer SEC Reports filed prior to the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth disclosed in Section 2.14(b4.11(b) of the Company Buyer Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, (i) each Company of the Buyer Material Contract Contracts is validvalid and binding upon Buyer or any of its Subsidiaries (and, bindingto Buyer's best knowledge, enforceable on all other parties thereto) in accordance with its terms and is in full force and effect, subject to the Enforceability Exceptions. No Person (ii) there is renegotiating, no material breach or has a right pursuant to the terms violation of any Company Material Contract to change, any material amount paid or payable to the Company default by Buyer or any of its Subsidiaries under any Company of the Buyer Material Contract Contracts, whether or not such breach, violation or default has been waived, and (iii) no event has occurred with respect to Buyer or any of its Subsidiaries which, with the notice or lapse of time or both, would constitute a material breach, violation or default, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a lien, prepayment or acceleration under any of the Buyer Material Contracts, which breach, violation or default referred to in clauses (ii) or (iii), alone or in the aggregate with other material term such breaches, violations or provision of any Company defaults referred to in clauses (ii) or (iii), would be reasonably likely to have a Buyer Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Jackpot Enterprises Inc), Merger Agreement (Kornstein Don R)
Agreements, Contracts and Commitments. (a) Section 2.14(a) Except as otherwise set forth ------------------------------------- in Part 2.16 of the Company Disclosure Schedule lists the following Letter, neither Company Contracts in effect as nor any of the date its subsidiaries is a party to or is bound by:
(a) any employment agreement, contract or commitment with any employee or member of this Agreement (Company's Board of Directors, other than those that are terminable by Company or any Company Benefit Plans) (eachof its subsidiaries on no more than thirty days notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Company's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification indemnification, any guaranty or guaranty not entered into in the Ordinary Course any instrument evidencing indebtedness for borrowed money by way of Businessdirect loan, sale of debt securities, purchase money obligation, conditional sale, or otherwise;
(iii) each Contract containing (Ad) any covenant limiting the agreement, obligation or commitment containing covenants purporting to limit or which effectively limit Company's or any of its subsidiaries' freedom of the Company, its Subsidiaries or the Surviving Corporation to engage compete in any line of business or compete with in any Person, geographic area or which would so limit Company or Surviving Corporation or any of its subsidiaries or any employees of any thereof after the Effective Time or granting any exclusive distribution or other exclusive rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the disposition or acquisition by Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(f) any licensing, distribution, sponsorship, advertising, merchant program or other similar agreement to which Company or one of its subsidiaries is a party which (i) may not be canceled by Company or its subsidiaries, as the case may be, without penalty upon notice of 30 days or less, and (ii) which provides for payments by or to Company or its subsidiaries in an amount in excess of $200,000 pursuant 100,000 over the term of the agreement or which is (or could reasonably be expected to its express terms and not cancelable without penaltybecome) material to Company;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ag) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 currently in the aggregateforce to provide source code to any third party for any product or technology; or
(h) any other agreement, contract or obligations after the date of this Agreement commitment currently in excess of $500,000 in the aggregate, or (B) effect that is material to the Company's business or operations of the as presently conducted and proposed to be conducted. Neither Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, 's knowledge any other party to a Company Material ContractContract (as defined below), has breachedis in breach, violated violation or defaulted default under, or and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable to, commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Disclosure Letter pursuant to clauses (a) through (h) above or pursuant to Section 2.11 hereof or are required to be filed with any Company Material Contract SEC Report (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the aggregate). The agreements set forth in Part 2.16(i) of the Company or its business or operations. As Disclosure Letter have, to Company's knowledge, been executed by each party thereto in the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject form provided to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractParent.
Appears in 2 contracts
Sources: Merger Agreement (Egghead Com Inc), Merger Agreement (Onsale Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 4.13 of the Company Homology Disclosure Schedule lists the following Company Homology Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) the Subscription Agreement (each, a “Company Homology Material Contract” and collectively, the “Company Homology Material Contracts”):
(i) each Homology Contract that would be is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)collective bargaining agreement or other agreement or arrangement with any labor union, works council or labor organization;
(ii) each Homology Contract for the employment or engagement of any individual on an employee, consulting or other basis that provides for annual base compensation in excess of $200,000;
(iii) each Homology Contract with any Homology Associate that provides for retention, change in control, transaction or other similar payments or benefits, whether or not payable as a result of the Contemplated Transactions;
(iv) each Homology Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each Homology Contract containing (A) any covenant limiting the freedom of the Company, Homology or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of Homology’s products or services, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement non-solicitation provision;
(vi) each Homology Contract (A) pursuant to purchase minimum quantity of goods or serviceswhich any Person granted Homology an exclusive license under any Intellectual Property, or (EB) pursuant to which Homology granted any material non-solicitation provisions applicable to the Company or Person an exclusive license under any of its SubsidiariesHomology IP Rights;
(ivvii) each Homology Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 500,000 pursuant to its express terms and not cancelable without penalty;
(vviii) each Homology Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $250,000 after the date of this Agreement;
(viix) each Homology Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $500,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Homology or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesHomology;
(viix) each Homology Contract requiring payment by or to the Company or any of its Subsidiaries Homology after the date of this Agreement in excess of $200,000 500,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Homology, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Homology or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Homology or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Homology or any of its Subsidiaries; such Subsidiary or (D) any Contract to license any Patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company Homology or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Homology or any of its Subsidiaries, in each case, except for Homology Contracts entered into in the Ordinary Course of Business;
(viiixi) each Homology Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Homology in connection with the Contemplated Transactions;
(ixxii) each Company Homology Contract to which Homology or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Homology or such Subsidiary in excess of $500,000;
(xiii) a Homology Real Estate Lease;
(xxiv) each a Contract with any Governmental Body;
(xidisclosed in or required to be disclosed in Section 4.12(b) each Company Out-bound License and Company In-bound License;
(xiior Section 4.12(c) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesHomology Disclosure Schedule; or
(xiiixv) any other Homology Contract that is not terminable at will (with no penalty or payment) by the Company Homology or any of its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Homology or its Subsidiaries such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 500,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 1,000,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company Homology and its Subsidiaries, Subsidiaries taken as a whole.
(b) The Company Homology has delivered or made available to Parent Q32 accurate and complete copies of all Company Homology Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Homology Material Contracts that are not in written form. As Homology has not, nor, to Homology’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Homology Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Homology Material Contract in such manner as would permit any other party to cancel or terminate any such Company Homology Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Homology Material Adverse Effect. As to the Company Homology and its Subsidiaries, as of the date of this Agreement, each Company Homology Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Homology Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Homology under any Company Homology Material Contract or any other material term or provision of any Company Homology Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Homology Medicines, Inc.), Merger Agreement (Homology Medicines, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Disclosure Schedule Letter lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement non-solicitation provision;
(iii) each Company Contract (A) pursuant to purchase minimum quantity of goods or serviceswhich any Person granted the Company an exclusive license under any Intellectual Property, or (EB) any material non-solicitation provisions applicable pursuant to which the Company or granted any of its SubsidiariesPerson an exclusive license under any Company IP Rights;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company, any of its Subsidiaries, or of a product;
(vi) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000 after the date of this Agreement;
(vivii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiviii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiiix) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Transactions and requiring payments by Company Real Estate Leaseafter the date in this Agreement in excess of $100,000 pursuant to its express terms;
(x) each Company Contract with to which the Company is a party or by which any Governmental Bodyof its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing entered into in settlement of any royalty, dividend Legal Proceeding or similar arrangement based on the revenues or profits of other dispute pursuant to which the Company or any of its Subsidiaries; orSubsidiaries has outstanding obligations to pay consideration in excess of $100,000;
(xiiixii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole; or
(xiii) Company Real Estate Leases.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit a manner, and, if such Company Material Contract provides for a cure period, the Company or such other party fails to have cured such breach, violation or default, so that any other party or the Company, as the case may be, is permitted to modify, cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Pulmatrix, Inc.), Merger Agreement (Glycomimetics Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be The Parent Disclosure Schedule sets forth a material contract as defined in Item 601(b)(10) true, complete and correct list of Regulation S-K as promulgated under all the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit following agreements, security agreements arrangements or other agreements understandings, whether written or instruments relating oral, to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company which Parent or any of its Subsidiaries is a party, (A) agreements relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed, secured by any asset or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(viiotherwise) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement for amounts in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); 1,000,000, (B) agreements for the lease of real or personal property to or from any agreement involving provision person with lease payments in excess of services $100,000 per year, (C) partnership agreements, joint venture agreements or products other similar agreements relating to similar business arrangements, (D) confidentiality or noncompetition agreements other than with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts confidentiality agreements entered into in the Ordinary Course ordinary course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to business for the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits benefit of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company Parent's or its Subsidiaries' vendors or customers, as applicable(E) profit sharing, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreementstock option, contract or commitment of more than $200,000 in the aggregatestock purchase, stock appreciation, deferred compensation, severance, or obligations after other plans or arrangements for the date benefit of this Agreement current or former employees or directors of Parent and its Subsidiaries, (F) collective bargaining or similar agreements, (G) agreements for the employment or retention of any individual on a full-time, part-time, consulting, or other basis not terminable on less than thirty (30) days notice without penalty or cost, (H) agreements under which it has advanced or loaned any amount in excess of $500,000 10,000 to any of the employees or affiliates of Parent, except for reimbursable business expenses (as determined in accordance with Parent's established employee reimbursement policies and consistent with past practices), (I) agreements for the aggregatepurchase or receipt of materials, software, supplies, goods, services, equipment or other assets that provide for either annual or aggregate payments by Parent or its Subsidiaries of $100,000 or more (other than Hydrocarbon Agreements), (J) sales, distribution, vendor or other similar agreements or arrangements providing for the sale, transfer or barter by Parent or its Subsidiaries of materials, supplies, goods, services, equipment, or other assets that provide for either annual or aggregate payments to Parent of $100,000 or more (Bother than Hydrocarbon Agreements), (K) that is agreements or term sheets relating to the acquisition or disposition of any business or assets of Parent (whether by merger, sale of stock, sale of assets or otherwise), excluding documentation relating to this Agreement and agreements or terms sheets in existence prior to December 31, 1998, (L) Hydrocarbon Agreements and (M) other agreements which are material to Parent (collectively the business or operations of the Company and its Subsidiaries, taken as a whole"Parent Material Agreements").
(bii) The Company Parent has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company a true, complete and its Subsidiaries, as correct copy of the date of this each Parent Material Agreement, each Company .
(iii) Each Parent Material Contract Agreement is valid, binding, enforceable and in full force and effect, subject has not been modified or amended and constitutes the legal, valid and binding obligation of Parent or its Subsidiaries, as the case may be, enforceable in accordance with its terms and will continue to be so on identical terms immediately following the consummation of the transactions contemplated by this Agreement, and Parent or its Subsidiaries, as the case may be, are not in default under any of such agreements, nor has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default by Parent or its Subsidiaries, as the case may be. No other party to any of the Parent Material Agreements (A) is, to the Enforceability Exceptions. No Person is renegotiatingknowledge of Parent, in default in the performance of any covenant or obligation to be performed by it pursuant to any such Parent Material Agreement or (B) has given notice that it intends to terminate, or has a right pursuant alter in any way adverse to the terms of any Company Parent, its performance under such Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Apco Argentina Inc/New)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or provisions, (C) marketing or distribution rights related to any products or territory, (CD) any exclusivity provision, (DE) any agreement to purchase minimum quantity of goods or services, (F) granting to any Person a right of first refusal, a right of first negotiation or a right of first offer, in each case, to purchase, acquire, sell, exclusively license or dispose of any material assets or properties of Parent or any of the Parent Subsidiaries or granting to any Person an option to purchase, acquire, sell, exclusively license or dispose of any assets or properties that are material to Parent and the Parent Subsidiaries, taken as a whole, or (EG) any material non-solicitation provisions applicable to the Company Parent or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 150,000 pursuant to its express terms and not cancelable without material penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any material assets of the Company Parent or any of its Subsidiaries (other than licenses to Intellectual Property Rights under Contracts set forth in Section 3.13(a)(xi) of the Parent Disclosure Schedule) or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Contract Contract, except for Contracts not requiring a payment in excess of $50,000 pursuant to its express terms by or to the Company Parent or any of its Subsidiaries after the date of this Agreement Closing Date that are cancellable without a penalty in excess of $200,000 pursuant to its express terms relating to50,000: (A) any that is a dealer or distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, that is a joint marketing, alliance, joint venture, cooperation, collaboration, collaboration or development or other agreement currently in force agreement; (D) under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that are not or will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (DE) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products product or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Parent Out-bound License (other than clinical trial agreements, non-disclosure agreements, and Company non-exclusive outbound licenses granted to service providers limited solely to such service providers performance of services for Parent or any of its Subsidiaries entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of Parent or its Subsidiaries) and Parent In-bound LicenseLicense (other than clinical trial agreements, services agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses and generally available patent license agreements entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of Parent or its Subsidiaries);
(xii) each Contract under which any third party develops any material Intellectual Property Rights for Parent or any Parent Subsidiary, other than individual consulting agreements that are substantially on Parent’s form of consulting agreement made available to the Company;
(xiii) each Contract containing any royalty, “earn-out,” dividend or similar arrangement contingent payment arrangement, including (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (y) payment of royalties or other amounts calculated based on the revenues revenues, income or profits of the Company Parent or any of its Subsidiaries; or
(xiiixiv) any other Contract that is not terminable at will (with no without penalty or paymentpayment in excess of $50,000) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment non-cancellable obligations on the part of, or receipt by the Company payments by, Parent or any of its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregateaggregate after the date hereof, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b3.13(b) of the Company Parent Disclosure Schedule, there are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which which, in each case, would reasonably be expected to be material and adverse to the Company Parent, its Subsidiaries or its their respective business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, which would reasonably be expected to be material and adverse to Parent, its Subsidiaries or their business or operations.
Appears in 2 contracts
Sources: Merger Agreement (CalciMedica, Inc. /DE/), Agreement and Plan of Merger (Graybug Vision, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(aAs of the date hereof, except as set forth under Schedule 4.13(a) of the Company Volato Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (eachSchedule, a “Company Material Contract” and collectively, the “Company Material Contracts”):Volato is not party to nor bound by any:
(i) each Contract that would be a “material contract contract” (as such term is defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)SEC) with respect to Volato or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with Volato Annual Report on Form 10-K for the year ended December 31, 2024, or any Volato SEC Documents filed after the date of filing of such Form 10-K until the date hereof;
(ii) each Contract (A) relating to the disposition or acquisition by Volato or any agreement of indemnification or guaranty not entered into its Subsidiaries of a material amount of assets (1) after the date of this Agreement other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice or (2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in claims in excess of $100,000 or (B) pursuant to which Volato or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Volato’s Subsidiaries;
(iii) each collective bargaining agreement or Contract containing with any labor union, trade organization or other employee representative body;
(iv) Contract establishing any joint ventures, partnerships or similar arrangements;
(v) Contract (A) any covenant prohibiting or materially limiting the freedom right of the Company, its Subsidiaries or the Surviving Corporation Volato to engage compete in any line of business or compete to conduct business with any PersonPerson or in any geographical area, (B) obligating Volato to purchase or otherwise obtain any “most-favored nations” pricing provisions product or marketing service exclusively from a single party or distribution rights related sell any product or service exclusively to any products a single party or territory, (C) under which any exclusivity provisionPerson has been granted the right to manufacture, (D) sell, market or distribute any product of Volato on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or similar agreement under which Volato has granted a Person an exclusive geographical area and under which Volato paid commissions less than $100,000 to purchase minimum quantity of goods or servicessuch Person in 2024, or (E) any material non-solicitation provisions applicable from whom Volato received less than $100,000 from the sale of product to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement said Person in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity2024;
(vi) each Contract relating pursuant to which Volato or any of its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by Volato or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Volato or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (12) month period or (ii) licenses Volato Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business;
(vii) mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or extension of credit of $100,000 or creating more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(viii) Contract providing for any material Encumbrances with respect to any assets of the Company guaranty by Volato or any of its Subsidiaries or any loans or debt of third-party obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Volato or any of its Subsidiaries has continuing obligations to develop as of the date hereof) of $100,000 or market more, other than any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, guaranty by the Company Volato or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions’ obligations;
(ix) each Company Real Estate LeaseContract between Volato, on the one hand, and any Affiliate of Volato (other than a Subsidiary of Volato), on the other hand (other than a Volato Plan);
(x) each Contract with containing a right of first refusal, right of first negotiation or right of first offer in favor of any Governmental Bodyparty;
(xi) each Company Out-bound License Contract under which Volato and Company In-bound LicenseVolato’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $100,000 during the current or a subsequent fiscal year;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; orEmployment agreement that cannot be terminated within sixty (60) days without a severance payment obligation;
(xiii) Change of control bonus or other bonus agreement that will trigger a payment obligation as a result of closing this Transaction;
(xiv) Contract to enter into any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeforegoing.
(b) The Company has delivered or made available been given access to Parent accurate a true and complete copies correct copy of all Company written Volato Material Contracts, including together with all amendments material amendments, waivers or other changes thereto. There are no oral Volato Material Contracts.
(c) Except as set forth on Section 4.13(c) of the Volato Disclosure Schedule, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Volato, (i) Volato is not in default under any Contract listed, or required to be listed, in Section 4.12(a) of the Volato Disclosure Schedule (each, a “Volato Material Contract” and, collectively, the “Volato Material Contracts”), and, (ii) to Volato’s Knowledge, as of the date hereof, the other party to each of the Volato Material Contracts is not in default thereunder. Except as set forth on Section 4.13(c) of the Volato Disclosure Schedule, each Volato Material Contract is legal and in full force and effect and is valid, binding and enforceable against Volato and, to Volato’s Knowledge, each other party thereto. Except as set forth in on Section 2.14(b4.13(c) of the Company Volato Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreementhereof, each Company no party to any Volato Material Contract is validhas given any written notice, binding, enforceable and in full force and effect, subject or to the Enforceability Exceptions. No Person is renegotiatingKnowledge of Volato, any notice (whether or has a right pursuant to the terms not written) of termination or cancellation of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Volato Material Contract or that it intends to seek to terminate or cancel any other material term Volato Material Contract (whether as a result of the transactions contemplated hereby or provision of any Company Material Contractotherwise).
Appears in 2 contracts
Sources: Merger Agreement (M2i Global, Inc.), Merger Agreement (Volato Group, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivd) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any EntityEntity (excluding agreements for the sale or purchase of goods or services in the Ordinary Course of Business);
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances (other than Permitted Encumbrances) with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(viig) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries150,000, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiih) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixi) each Company Parent Real Estate Lease;
(xj) each Contract with any Governmental Body;
(xik) each Company Parent Out-bound License and Company Parent In-bound License;
(xiil) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or
(xiiim) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 150,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 150,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company . Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to the Knowledge of Parent, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, of or Laws applicable to, to any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, assuming due execution and delivery by the counterparties thereto, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Kubient, Inc.), Merger Agreement (Kubient, Inc.)
Agreements, Contracts and Commitments. Except as set forth in Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Section 2.14(a) of the No Acquired Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (eachis a party to, a “Company Material Contract” and collectively, the “Company Material Contracts”):or is bound by:
(i) each Contract that would be a material contract Other than as defined listed in Item 601(b)(10Section 2.16(a)(i) of Regulation S-K as promulgated under the Securities Act Disclosure Schedule, any (assuming the Company was subject A) employment, contractor or consulting Contract, (B) Contract with Service Provider, or (C) any Contract to the public reporting requirements of the Exchange Act)grant any severance or termination pay (in cash or otherwise) to any employee;
(ii) other than the Company Plans or any of the collective bargaining agreements listed in Section 2.16(a)(ii) of the Disclosure Schedule (each an “Applicable CBA”), any Contract relating to or plan, including any agreement stock option plan, stock appreciation rights plan or stock purchase plan, any of indemnification the benefits of which will be increased, or guaranty not entered into the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or in connection with additional or subsequent events) or the Ordinary Course value of Businessany of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries fidelity or the Surviving Corporation to engage in any line of business surety bond or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariescompletion bond;
(iv) each any collective bargaining, union or works council Contract other than the Applicable CBAs;
(v) any lease of personal property having a value in excess of €25,000 individually or €50,000 in the aggregate;
(vi) any Contract that imposes surety, guaranty or indemnification obligations on the Acquired Companies (other than indemnities contained in non-exclusive licenses of Company products and services to end-users that have been entered into in the ordinary course of business consistent with past practice pursuant to the Company’s standard forms included in Section 2.15(j) of the Disclosure Schedule);
(vii) any Contract relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty€25,000 individually or €50,000 in the aggregate;
(vviii) each any Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the business of the Acquired Companies;
(viix) each Contract relating to any mortgagesmortgage, indenturesindenture, loansguarantee, notes loan or credit agreementsagreement, security agreements agreement or other agreements or instruments Contract relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each any purchase order Contract with any Governmental Bodyfor the purchase of materials involving in excess of €15,000;
(xi) each Company Out-bound License and Company In-bound Licenseany construction Contract;
(xii) each Contract containing any royaltyjoint marketing, dividend joint venture, partnership, strategic alliance, affiliate or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; ordevelopment Contract;
(xiii) any Contract to alter interest of any Acquired Company in any Person in which the Company directly or indirectly holds any interest;
(xiv) any Contract pursuant to which the any Acquired Company has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date hereof, or contingent upon the release or delivery of any new product or new version of an existing product;
(xv) any Contract between the Acquired Companies and a customer or partner of the Acquired Companies pursuant to which paid fees must be refunded, payment of fees is contingent upon or an agreement may be terminated in the event the software products, services or deliverables offered by the Acquired Companies do not pass acceptance testing by such customer or partner;
(xvi) any Contract between any Acquired Company and a customer or partner of the Acquired Companies which includes a most favored customer, price or service benchmarking or similar clause;
(xvii) any Contract between any Acquired Company and a customer or partner of the Acquired Companies for which application revenue, under Relevant Accounting Standards, may not be recognized on a prorata basis over the term of the agreement or for which any application revenue must be deferred or put on hold pending a future event;
(xviii) any dealer, distribution, sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other Contract for use or distribution of the products, technology or services of the Acquired Companies; or
(xix) any other Contract, including any service, operating or management Contract with respect to any of the Leased Real Property, that involves €25,000 individually or €50,000 in the aggregate or more and is not terminable at will (with no cancelable without penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholewithin 30 days.
(b) The Each Contract to which any Acquired Company has delivered is a party or made available to Parent accurate any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copies binding agreement of all such Acquired Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) enforceable against each of the Company Disclosure Scheduleparties thereto in accordance with its terms, there are no Company Material Contracts that are not and is in written form. As of full force and effect with respect to Acquired Companies and, to the date of this Agreement, none Knowledge of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contractthereto. The Acquired Companies are in compliance with, has and have not breached, violated or defaulted under, or received notice or has any Knowledge that a customer may assert that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate of any such Contract, nor to the Knowledge of the Company is any Person obligated to the Acquired Companies pursuant to any such Contract subject to any breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Acquired Companies or any such other Person. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, or would permit any other party the “Material Contracts”) have been made available to seek damages or pursue other legal remedies which would reasonably be expected Purchaser.
(c) The Acquired Companies have fulfilled all material obligations required pursuant to be material each Contract to have been performed by the Acquired Companies prior to the Company or its business or operations. As to the Company date hereof and its Subsidiaries, as of Closing.
(d) Except as disclosed in Section 2.16(d) of the date Disclosure Schedule, all outstanding Indebtedness of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAcquired Companies may be prepaid without penalty.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Taleo Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 2.9 of the Company CombiMatrix Disclosure Schedule lists identifies the following Company Contracts in effect CombiMatrix Contracts, effective as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company CombiMatrix Material Contract” and collectively, the “Company CombiMatrix Material Contracts”):
(ia) each CombiMatrix Contract that would be a material contract as defined in Item 601(b)(10) of Regulation Srelating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(iib) each CombiMatrix Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, not terminable by CombiMatrix or its Subsidiaries on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit CombiMatrix’s, CombiMatrix’s Subsidiaries’ or such successor’s ability to terminate employees at will;
(c) each CombiMatrix Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each CombiMatrix Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between CombiMatrix and any of its respective officers or directors;
(iiie) each CombiMatrix Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyCombiMatrix, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivf) each CombiMatrix Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 25,000 and not cancelable without penalty;
(vg) each CombiMatrix Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vih) each CombiMatrix Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $25,000 or creating any material Encumbrances with respect to any assets of the Company CombiMatrix or any of its Subsidiaries CombiMatrix Subsidiary or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCombiMatrix;
(viii) each CombiMatrix Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services services, products or products technology with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; CombiMatrix (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company CombiMatrix or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company CombiMatrix or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company CombiMatrix or any of its Subsidiariessuch CombiMatrix Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any CombiMatrix product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any products CombiMatrix products, technology or service of the Company services except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiij) each CombiMatrix Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company CombiMatrix in connection with the Contemplated Transactions;
(ixk) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCombiMatrix IP Right Agreement; or
(xiiil) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company CombiMatrix or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $25,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (Bii) that is material to the business or operations of the Company CombiMatrix and its Subsidiaries, taken as a whole.
(b) The Company . CombiMatrix has delivered or made available to Parent Invitae accurate and complete (except for applicable redactions thereto) copies of all Company CombiMatrix Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company CombiMatrix Material Contracts that are not in written form. As Neither CombiMatrix nor any of its Subsidiaries has, nor to CombiMatrix’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company CombiMatrix Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company CombiMatrix Material Contract in such manner as would permit any other party to cancel or terminate any such Company CombiMatrix Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsdamages. As to the Company CombiMatrix and its Subsidiaries, as of the date of this Agreement, each Company CombiMatrix Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the Enforceability Exceptionsrelief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not result in any material payment or payments becoming due from CombiMatrix, any CombiMatrix Subsidiary, the Surviving Corporation or Invitae to any Person under any CombiMatrix Contract or give any Person the right to terminate or alter the provisions of any CombiMatrix Contract. No Person is renegotiating, or has a right pursuant to the terms of any Company CombiMatrix Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries CombiMatrix under any Company CombiMatrix Material Contract or any other material term or provision of any Company CombiMatrix Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Invitae Corp), Merger Agreement (CombiMatrix Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a4.14(a) of the Company Keystone Disclosure Schedule lists the following Company Keystone Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Keystone Material Contract” and collectively, the “Company Keystone Material Contracts”):
(i) each Keystone Contract that would be a material contract as defined requiring payments by Keystone or any of its Subsidiaries after the date of this Agreement in Item 601(b)(10) excess of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject $250,000 per annum pursuant to its express terms relating to the public reporting requirements employment of, or the performance of employment-related services by, or engagement by any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by Keystone or its Subsidiaries on ninety (90) calendar days’ or less notice without liability, except to the Exchange Act)extent general principles of wrongful termination Law may limit Keystone’s, its Subsidiaries’ or such successor’s ability to terminate employees, consultants or independent contractors at will;
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Keystone Contract containing (A) any covenant limiting the freedom of the CompanyKeystone, its Subsidiaries or the U.S. Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of Keystone’s products or services, (B) any “most-favored nations” pricing provisions arrangement, or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iviii) each Keystone Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 per annum pursuant to its express terms and not cancelable without penalty;
(viv) each Keystone Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Keystone Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 per annum or creating any material Encumbrances with respect to any assets of the Company Keystone or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesKeystone;
(viivi) each Keystone Contract requiring payment by or to the Company Keystone or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 per annum pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Keystone or any of its Subsidiaries; , (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Keystone or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Keystone or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; Keystone or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company Keystone or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service services of the Company Keystone or any of its Subsidiaries;
(vii) each Keystone Contract for the establishment of a partnership, in each case, except for Contracts entered into in the Ordinary Course of Businessjoint venture or other similar organizational form;
(viii) each Keystone Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Keystone or any of its Subsidiaries in connection with the Contemplated Transactions;
(ix) each Company Keystone Real Estate Lease;
(x) each Keystone Contract with any Governmental Body;that is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Keystone Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company to which Keystone or any of its Subsidiaries; or
(xiii) Subsidiaries is a party or by which any other Contract that of its or their assets and properties is not terminable at will (with no penalty or payment) by the Company or its Subsidiariescurrently bound, as applicable, and (A) which involves annual obligations of payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregateby, or obligations after the date of this Agreement annual payments to, Keystone or such relevant Subsidiary in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole250,000.
(b) The Company Keystone has delivered or made available to Parent Check-Cap accurate and complete copies of all Company Keystone Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Keystone Material Contracts that are not in written form. As Neither Keystone nor any of its Subsidiaries has, nor to Keystone’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Keystone Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Keystone Material Contract in such manner as would permit any other party to cancel or terminate any such Company Keystone Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Keystone Material Adverse Effect. As to the Company Keystone and its Subsidiaries, as of the date of this Agreement, each Company Keystone Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Keystone Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Keystone under any Company Keystone Material Contract or any other material term or provision of any Company Keystone Material Contract.
Appears in 2 contracts
Sources: Business Combination Agreement (Check-Cap LTD), Business Combination Agreement (Check-Cap LTD)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision, in each case, except for restrictions that would not materially affect the ability of the Company or any of and its SubsidiariesSubsidiaries to conduct its business;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000, other than Company Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to ▇▇▇ or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or;
(xii) each (A) Company Contract, offer letter, employment agreement or other agreement with any employee that (1) is not immediately terminable at will by the Company without advance notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event) and (B) each Company Contract, independent contractor agreement, or other agreement with any consultant or service provider that (1) is not immediately terminable at will by the Company without more than thirty (30) days’ prior notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event);
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute;
(xv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole; and
(xvi) each Subscription Agreement.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Rexahn Pharmaceuticals, Inc.), Merger Agreement (Rexahn Pharmaceuticals, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a4.22(a) of the Company Target Disclosure Schedule lists each Transaction Agreement and each Contract to which Target and each of its Subsidiaries is a party or bound and that fall within any of the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) categories (each, a “Company Material Target Contract” and collectively, the “Company Material Contracts”):
): (i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty Contracts not entered into in the Ordinary Course ordinary course of Business;
business, (ii) joint venture, partnership and similar agreements, (iii) each Contract Contracts which are service contracts or equipment leases involving payments by Target of more than $10,000 per year, (iv) Contracts containing (A) any covenant limiting covenants purporting to limit the freedom of Target (or, after the CompanyClosing, Purchaser or its Subsidiaries or the Surviving Corporation Subsidiaries) to engage compete in any line of business in any geographic area or compete to hire any individual or group of individuals, or requiring Target (or, after the Closing, Purchaser or its Subsidiaries) to deal exclusively with, grant exclusive rights to, or refrain from dealing with products that are competitive with any Personother party’s products, (Bv) Contracts which contain minimum purchase conditions or requirements or other terms that restrict or limit the purchasing relationships of Target or its Affiliates, or any “most-favored nations” pricing provisions customer, licensee or marketing or distribution rights related lessee thereof, (vi) Contracts relating to any products or territoryoutstanding commitment for capital expenditures of more than $10,000 per year, (Cvii) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable Contracts relating to the Company lease or sublease of or sale or purchase of real or personal property involving any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement annual expense or price in excess of $200,000 pursuant to its express terms 10,000 and not cancelable by Target (without premium or penalty;
) within 90 days, (vviii) each Contract relating to the disposition or acquisition of material assets or Contracts with any ownership interest in any Entity;
labor organization, (viix) each Contract relating to any indentures, mortgages, indenturespromissory notes, loans, notes or credit loan agreements, security agreements guarantees, letters of credit or other agreements or instruments relating of Target or commitments for the borrowing or the lending of amounts in excess of $10,000 by Target or providing for the creation of any Lien upon any of the assets of Target, (x) Contracts providing for “earn-outs” or other contingent payments, (xi) Contracts with or for the benefit of any holder of capital stock or options to purchase capital stock of Target, Affiliate of Target or, to the borrowing knowledge of money Target, any such holder or extension of credit or creating any material Encumbrances immediate family member thereof, (xii) Contracts with respect to employment or consulting services or providing for severance benefits, (xiii) Contracts involving any assets current or former officer, director or stockholder of the Company Target or any an Affiliate of its Subsidiaries or any loans or debt obligations with officers or directors Target; and (xiv) all other Contracts not called for above that are material to the business of Target as it is currently being conducted.
(b) Each of the Company or Material Target Contracts is valid and in full force and effect. Neither Target nor any of its Subsidiaries;
(vii) each Contract requiring payment by , nor to Target’s knowledge any other party to a Material Target Contract, has violated any material provision of, or committed or failed to perform any act which, with or without notice, lapse of time, or both, would constitute a material default under the Company or provisions of any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealersuch Material Target Contract, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or and neither Target nor any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in received written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the Material Target Contracts. Neither Target nor any Subsidiary of Target is a party to, or Laws applicable otherwise a guarantor of or liable with respect to, any Company Material Contract in such manner as would permit any interest rate, currency or other party to cancel swap or terminate derivative transaction, other than any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to transactions in the Company or its business or operationsordinary course of business. As to the Company Target has made correct and its Subsidiaries, as complete copies of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject Target Contracts available to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractPurchaser.
Appears in 2 contracts
Sources: Merger Agreement (Resource Capital Fund v L.P.), Merger Agreement (Uranium Resources Inc /De/)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 5.13 of the Company Parent Disclosure Schedule lists the following Company Contracts Letter identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined requiring payments by Parent after the date of this Agreement in Item 601(b)(10excess of two hundred and fifty thousand dollars ($250,000) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject pursuant to its express terms relating to the public reporting requirements employment of, or the performance of the Exchange Act)employment-related services by, any Parent Associate providing employment-related, consulting or independent contractor services, not terminable by Parent on thirty (30) calendar days’ or less notice without liability;
(ii) each Parent Contract relating to any agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased or guaranty not entered into the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the Ordinary Course value of Businessany of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Parent’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of two hundred thousand dollars ($200,000 200,000) pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract (A) relating to any partnership or joint venture or (B) relating to the disposition or acquisition of (x) material assets involving payments in excess of two hundred thousand dollars ($200,000) after the date of this Agreement or with respect to which the Company has any material ongoing obligations or (y) or any ownership interest in any Entity;
(vi) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute pursuant to which Parent or any of its Subsidiaries has outstanding obligations to pay consideration in excess of two hundred thousand dollars ($200,000);
(vii) each Parent Contract relating to any mortgages, indentures, loans, notes or notes, credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of one hundred fifty thousand dollars ($150,000) or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viiviii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of two hundred thousand dollars ($200,000 200,000) pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessterms;
(viiiix) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
Transactions and requiring payments by Parent after the date in this Agreement in excess of two hundred thousand dollars (ix$200,000) each Company Real Estate Leasepursuant to its express terms;
(x) each Parent Contract with to which Parent is a party or by which any Governmental Body;of their assets and properties is currently bound (other than Parent Real Estate Leases), which involves annual obligations of payment by, or annual payments to, Parent in excess of two hundred thousand dollars ($200,000); or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableParent, and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than two hundred thousand dollars ($200,000 200,000) in the aggregate, or obligations after the date of this Agreement in excess of two hundred thousand dollars ($500,000 200,000) in the aggregate, excluding any such Parent Contract related to inventory or raw materials purchased by the Parent or (B) that is material to the business or operations of the Company and its Subsidiaries, Parent taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit a manner, and, if such Parent Material Contract provides for a cure period, Parent or such other party fails to have cured such breach, violation or default, so that any other party or Parent, as the case may be, is permitted to modify, cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Parent Material Adverse Effect. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 2 contracts
Sources: Share Purchase Agreement (Oramed Pharmaceuticals Inc.), Share Purchase Agreement (Lifeward Ltd.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or provisions, (C) marketing or distribution rights related to any products or territory, (CD) any exclusivity provision, (DE) any agreement to purchase minimum quantity of goods or services, (F) granting to any Person a right of first refusal, a right of first negotiation or a right of first offer, in each case, to purchase, acquire, sell, exclusively license or dispose of any material assets or properties of the Company or granting to any Person an option to purchase, acquire, sell, exclusively license or dispose of any assets or properties that are material to the Company, or (EG) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesCompany;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without material penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any material assets of the Company or any (other than licenses to Intellectual Property Rights under Contracts set forth in Section 2.13(a)(xi) of its Subsidiaries the Company Disclosure Schedule) or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating toContract: (A) any that is a dealer or distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, that is a joint marketing, alliance, joint venture, cooperation, collaboration, collaboration or development or other agreement currently in force agreement; (D) under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that are not or will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (DE) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License (other than clinical trial agreements, non-disclosure agreements and non-exclusive outbound licenses granted to service providers limited to such service providers performance of services for the Company, non-disclosure agreements, in each case entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of the Company) and Company In-bound LicenseLicense (other than clinical trial agreements, services agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses and generally available patent license agreements, in each case entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of the Company);
(xii) each Contract under which any third party develops any material Intellectual Property Rights for the Company, other than individual consulting agreements that are substantially on the Company’s form of consulting agreement made available to Parent;
(xiii) each Contract containing any royalty, “earn-out”, dividend or similar arrangement contingent payment arrangement, including (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (y) payment of royalties or other amounts calculated based on the revenues revenues, income or profits of the Company or any of its SubsidiariesCompany; or
(xiiixiv) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by or obligations for the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which which, in each case, would reasonably be expected to be material and adverse to the Company or its business or operations. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, which would reasonably be expected to be material and adverse to the Company or its business or operations.
Appears in 2 contracts
Sources: Merger Agreement (CalciMedica, Inc. /DE/), Agreement and Plan of Merger (Graybug Vision, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any EntityEntity (excluding agreements for the sale or purchase of goods or services in the Ordinary Course of Business);
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances (other than Permitted Encumbrances) with respect to any assets of the Company or any of its Subsidiaries Group or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesGroup;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries Group after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries150,000, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Group in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesGroup; or
(xiiixii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its SubsidiariesGroup, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries Group after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 150,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 150,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As The Company Group has not, nor to the Knowledge of the Company, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, of or Laws applicable to, to any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Group or its business or operationsbusiness. As to the Company and its SubsidiariesGroup, as of the date of this Agreement, assuming due execution and delivery by the counterparties thereto, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries Group under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Kubient, Inc.), Merger Agreement (Kubient, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesCompany;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(vii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 400,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Company Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCompany; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment Contract of more than $200,000 300,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (MorphImmune Inc.), Merger Agreement (Immunome Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a relating to any material contract as defined in Item 601(b)(10) of Regulation Sbonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $150,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by the Company or its Subsidiaries on 90 calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit the Company’s, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iv) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivvi) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(vvii) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viviii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiix) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiix) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixxi) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;; or
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent Meerkat accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Synlogic, Inc.), Merger Agreement (Mirna Therapeutics, Inc.)
Agreements, Contracts and Commitments. Except as otherwise set ------------------------------------- forth in the Talarian Disclosure Schedules, neither Talarian nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment agreement, contract or commitment with any employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Talarian's Board of the date of this Agreement (Directors, other than those that are terminable by Talarian or any Company Benefit Plans) (eachof its subsidiaries on no more than thirty days notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Talarian's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification outside the ordinary course of Talarian's business or guaranty not entered into in the Ordinary Course of Businessany guaranty;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Talarian or any of its Subsidiaries subsidiaries or the Surviving Corporation a Joint Venture to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Talarian or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Talarian has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Talarian's subsidiaries or a Joint Venture;
(f) other than the End-User Licenses set forth in Section 2.9(a)(ii) of the Talarian Disclosure Schedules and End User Licenses not listed in the Talarian Disclosure Schedules under which Talarian has not recognized revenue subsequent to January 1, 1997 and which are not material on an individual basis to Talarian, any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement currently in effect to which Talarian or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Talarian or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition 50,000 upon notice of 45 days or acquisition of material assets less or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment which provides for payments by or to the Company Talarian or any of its Subsidiaries after the date of this Agreement subsidiaries or a Joint Venture in an amount in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities 50,000 over the term of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessagreement;
(viiig) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to than the Company End-User Licenses set forth in connection with the Contemplated Transactions;
(ixSection 2.9(a)(ii) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or Talarian Disclosure Schedules and End User Licenses not listed in the Talarian Disclosure Schedules under which Talarian has not recognized revenue subsequent to January 1, 1997 and which are not material on an individual basis to Talarian, any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 currently in the aggregateforce, or obligations after that may be triggered upon the date completion of the transactions contemplated by this Agreement Agreement, to provide source code to any third party for any product or technology; or
(h) other than the End-User Licenses set forth in excess Section 2.9(a)(ii) of $500,000 the Talarian Disclosure Schedules, any other agreement, contract or commitment currently in the aggregate, or (B) effect that is material to the Talarian's business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretopresently conducted. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Talarian nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Talarian's knowledge any Joint Venture or any other party to a Company Material ContractTalarian Contract (as defined below), has breachedis in breach, violated violation or defaulted default under, and neither Talarian nor any of its subsidiaries nor, to the knowledge of Talarian, any Joint Venture has received written notice (or received notice to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Talarian or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed in the Talarian Disclosure Schedules pursuant to clauses (a) through (h) above or pursuant to Section 2.9 hereof (any such agreement, any Company Material Contract contract or commitment, a "Talarian Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, Talarian Contract or would permit any other party to seek damages or pursue other legal remedies the effect of which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company have a Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Talarian.
Appears in 2 contracts
Sources: Merger Agreement (Talarian Corp), Merger Agreement (Tibco Software Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 2.14(a) 2.15 of the Company Disclosure Schedule lists (specifying the appropriate subparagraph), the Company is not a party to, nor is it bound by any of the following (each, a “Material Contract”) to the extent currently in effect:
(i) any (A) employment, contractor or consulting Contract with an employee, individual consultant or contractor, or (B) consulting Contract with a firm or organization (excluding any agreement or offer letter that is terminable at-will and does not provide severance or termination payments and any stock option agreements providing for the grant of Company Contracts Options under the Plans on the Company’s standard form previously made available to Parent);
(ii) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment having a value in excess of $25,000 in the aggregate over the initial term of the lease;
(v) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty with respect to the infringement by the Company Products of the Intellectual Property Rights of third parties that are contained in the Company’s written agreements with its customers that have been entered into in the ordinary course of business, consistent with past practices, substantially in the Company’s standard form of customer agreement;
(vi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000 in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)Agreement;
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (Avii) any covenant limiting the freedom of the Companyagreement, its Subsidiaries contract or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the Company’s business, consistent with past practices;
(viviii) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit;
(ix) any purchase order, contract or creating other commitment obligating the Company to purchase materials or services at a cost in excess of $25,000 in the aggregate as of the date of this Agreement;
(x) any material Encumbrances agreement containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, “most favored nations,” restriction on the operation or scope of its businesses or operations, or similar terms;
(xi) any agreement providing a customer with respect to refund rights;
(xii) any assets agreement for the use, distribution or integration of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of Products other than by the Company or any of its Subsidiariesconsumer end-user, including dealer, distribution, marketing, development, sales representative, original equipment manufacturer, manufacturing, supply, value added, remarketer, reseller, vendor, business partner, service provider and joint venture agreements;
(viixiii) each Contract requiring payment by or to the Company or any agreement in effect as of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has received revenue or other payments in excess of $25,000 in the aggregate in the twelve (12) months ended December 31, 2015;
(xiv) any terms of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owneduse or terms of services, in whole including those posted or in partimplemented as “browsewrap” or “clickwrap” agreements, by for third-party Web sites and other publicly accessible on-line sources from which the Company or a person acting on the Company’s behalf has extracted or collected information through the use of any of its Subsidiaries; “scrapers,” “spiders,” “bots” or (D) any Contract to license any third party to manufacture other automated software programs or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessprocesses;
(viiixv) each Contract any contracts, licenses and agreements to which the Company is a party with respect to any PersonTechnology or Intellectual Property Rights, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Outin-bound License and Company Inlicenses, out-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiarieslicenses and cross-licenses; or
(xiiixvi) any other Contract agreement, contract or commitment that is not terminable at will (with no penalty or payment) by involves $25,000 in the Company or its Subsidiaries, aggregate as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after of the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that and is material to the business or operations of not cancelable by the Company and its Subsidiaries, taken as a wholewithout penalty within thirty (30) days.
(b) The Company is in compliance with and has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to nor does the Company have Knowledge of any event that would constitute such a breach, violation or its business default with the lapse of time, giving of notice or operationsboth. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Each Material Contract is valid, binding, enforceable and in full force and effect, and the Company is not subject to the Enforceability Exceptions. No Person is renegotiatingany default thereunder, or has a right pursuant nor to the terms Knowledge of the Company is any Company Material Contract to change, any material amount paid or payable party obligated to the Company or pursuant to any of its Subsidiaries under any Company such Material Contract subject to any default thereunder. Except as set forth in Section 2.15(b) of the Disclosure Schedule, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to a Material Contract has any other material term intention of terminating such Material Contract with the Company or provision reducing the volume of any Company Material Contractbusiness such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (FOTV Media Networks Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(x) each Company Contract required to be listed on Section 2.12(c) or Section 2.12(d) of the Company Disclosure Schedule;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiixii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received written notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization, Merger Agreement (Aviragen Therapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 2.8 of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its SubsidiariesSchedules sets forth, as of the date of this Agreement, a true and complete list of, and the Company has made available to Buyer true and complete copies of, the following Contracts (other than any Leases, Labor Agreements or Company Benefit Plans) (collectively, the “Material Contracts”):
(a) each Contract of the Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, Company Subsidiaries involving aggregate payments by or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or the Company Subsidiaries of more than $250,000 in any twelve month period;
(b) (i) all Contracts pursuant to which any indebtedness for borrowed money of the Company or a Company Subsidiary is outstanding or may be incurred, and (ii) all Contracts of or by the Company guaranteeing any debt obligations of any other Person (other than the Company or the Company Subsidiaries);
(c) all Contracts pursuant to which the Company or a Company Subsidiary has agreed not to, or which, following the consummation of the transactions contemplated by this Agreement, would restrict the ability of Buyer, including the Company or any Company Subsidiary, to compete with any Person in any business or in any geographic area or to engage in any business or other activity, including any restrictions relating to “exclusivity” or any similar requirement in favor of any Person other than the Company or a Company Subsidiary or pursuant to which any material benefit is required to be given or lost as a result of so competing or engaging, other than any Leases;
(d) all Contracts to which the Company or a Company Subsidiary is party granting any license to, or franchise in respect of, any material right, property or other asset;
(e) all Contracts pursuant to which material Intellectual Property is licensed to or from the Company or a Company Subsidiary (excluding for the use of commercially available, off-the-shelf software); and
(f) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) in which the Company or a Company Subsidiary holds an interest. Each Material Contract is a legal, valid and binding obligation of the Company or a Company Subsidiary, as applicable, and to the knowledge of the Company, the other parties thereto, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. Neither the Company nor any Company Subsidiary is in violation of or in default under (nor, to the knowledge of the Company, does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Material Contract to which it is a party or by which the Company or any Company Subsidiary, or any of its Subsidiaries under any Company their respective properties or other assets are bound, except for violations or defaults that individually or in the aggregate have not had, and are not reasonably likely to have, a Material Contract or any other material term or provision of any Company Material ContractAdverse Effect.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a) 3.10 of the Company TSI Disclosure Schedule lists Schedule, neither TSI nor any of its Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under (i) any severance, termination or retirement agreement or any employment or consulting agreement providing for aggregate payments to any person in any calendar year in excess of $100,000 or continuing for more than one year, (ii) any agreement relating to the following Company Contracts borrowing of money by TSI or any of its Subsidiaries or the guarantee by any TSI or any of its Subsidiaries of any such obligation (other than agreements evidencing trade payables or relating to borrowings or guarantees made in effect the ordinary course of business), (iii) any agreement which prohibits or restricts TSI or any of its Subsidiaries from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other person, (iv) any agreement involving TSI Intellectual Property Rights or TSI Third Party Intellectual Property Rights (other than Off-the-Shelf Software licenses) which provide for annual payments of $100,000 or more, (v) any agreement relating to the provision of computer software, computer hardware, data processing systems or equipment, network communication, transactional billing, management information or other technical systems or services, including maintenance with respect to the foregoing matters, to or by TSI or any of its Subsidiaries which provides for annual payments of $100,000 or more, (vi) any agreement relating to the purchase or lease of real property, and (vii) any other agreement or amendment thereto that would be required to be filed as an exhibit to a Form 10-K filed by TSI with the SEC as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company "TSI Material Contracts”):
"). With respect to each TSI Material Contract and except as disclosed in Section 3.10 of the TSI Disclosure Schedule: (i) each the TSI Material Contract that would be a material contract as defined is in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
full force and effect; (ii) each Contract relating to neither TSI nor any agreement of indemnification its Subsidiaries is in default or guaranty not entered into breach thereunder in the Ordinary Course of Business;
any material respect; (iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or neither TSI nor any of its Subsidiaries;
Subsidiaries has repudiated or waived any material provision of any such TSI Material Contract; (iv) each no other party to any such TSI Material Contract relating is, to capital expenditures and requiring payments after the date knowledge of this Agreement TSI, in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
default or breach in any material respect or has repudiated or waived any material provision thereunder; (v) each Contract relating there exists no actual, or, to the disposition knowledge of A-10 18 TSI, threatened, cancellation, termination, or acquisition of material assets limitation of, or any ownership interest in amendment, modification, or change to, any Entity;
TSI Material Contract; (vi) each neither TSI nor any of its Subsidiaries has received formal notice that any party to a TSI Material Contract relating to any mortgages, indentures, loans, notes will not renew such contract at the end of its existing term; and (vii) no TSI Material Contract requires consent or credit agreements, security agreements or other agreements or instruments relating to notice in connection with the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets transactions contemplated by this Agreement. All of the Company indebtedness of TSI or any of its Subsidiaries or for money borrowed is prepayable at any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no time without penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholepremium.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as As of the date of this Agreement, except as set forth in Section 2.15(a) of the Disclosure Schedule (specifying the appropriate subparagraph), and except for this Agreement (other than and the transactions contemplated hereby, the Company is not a party to, nor is it bound by any Company Benefit Plans) of the following (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract any employment, contractor or consulting agreement or contract with an employee or individual consultant, contractor or salesperson, or consulting or services agreement that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming is not terminable by the Company was subject to the public reporting requirements of the Exchange Act)at will and without material penalty, other than employment agreements in foreign jurisdictions which provide for severance payments consistent with statutory requirements;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment requiring annual lease payments in excess of $50,000 individually or $350,000 in the aggregate;
(v) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty not with respect to the infringement by the Company products of the Intellectual Property Rights of third parties or other product guarantees that are contained in the Company’s written agreements with its customers that have been entered into in the Ordinary Course ordinary course of Businessbusiness, consistent with past practices;
(iii) each Contract containing (Avi) any covenant limiting agreement, contract or commitment (excluding commitments made to customers in the freedom ordinary course of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (Bbusiness) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring future payments after the date of this Agreement in any calendar year in excess of $200,000 pursuant to its express terms and not cancelable without penalty100,000 individually or $300,000 in the aggregate;
(vvii) each Contract any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the Company’s business, consistent with past practices;
(viviii) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactionscredit;
(ix) each any agreement with a supplier of inventory or services that represents one of the ten largest suppliers of the Company Real Estate Lease(based on payments made) for any fiscal year after March 1, 2009;
(x) each Contract with any Governmental Bodyagreement containing covenants or other obligations granting or containing any current or future commitments restricting the operation or scope of the Company’s businesses, including, without limitation exclusivity, non-compete, or “most favored nations” restrictions;
(xi) all agreements with each of the Company’s (a) top twenty (20) largest sources of revenue for any fiscal year after March 1, 2009 that are commercial customers, including without limitation value added resellers, other resellers, distributors, original equipment manufacturers and business partners, but excluding agreements with direct end-user customers in the “professional market” (e.g., law firms and other professional service organizations) and (b) top twenty (20) largest sources of revenue for the Company Outfor any fiscal year after March 1, 2009 that are end-bound License and Company In-bound Licenseuser customers in the professional market;
(xii) each Contract containing any royaltycontracts, dividend or similar arrangement based on the revenues or profits of licenses and agreements to which the Company is a party with respect to any Technology or Intellectual Property Rights, including without limitation any in-bound licenses, out-bound licenses and cross-licenses, other than standard outbound end user licenses or other customer agreements entered into in the ordinary course of its Subsidiariesbusiness, consistent with past practice (provided that for purposes of Section 2.15(b), all such standard outbound end user licenses and customer agreements shall be considered Material Contracts) and excluding commercial “off-the-shelf” software with aggregate license fees of less than $10,000; or
(xiii) any other Contract agreement or contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves requires future payment or receipt by the Company or its Subsidiaries after the date of this Agreement under in any such agreement, contract or commitment calendar year of more than $200,000 in 150,000 or more than $250,000 during the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations remaining term of the Company agreement and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of is not cancelable by the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be without material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractpenalty within ninety (90) days.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Nuance Communications, Inc.)
Agreements, Contracts and Commitments. Predix and its subsidiaries are not parties to or bound by:
(a) except as described in Section 2.14(a2.12(a) of the Company Predix Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (Schedule, any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)employee benefit plans or arrangements;
(iib) each Contract relating except as described in Section 2.12(a) of the Predix Disclosure Schedule, any employment or consulting agreement, contract or commitment with any officer or director level employee, not terminable by Predix or its subsidiaries on thirty (30) days notice without liability, except to the extent general principles of wrongful termination law may limit Predix’s or its subsidiaries’ ability to terminate employees at will; Table of Contents
(c) except as described in Section 2.12(a) of the Predix Disclosure Schedule, any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(d) any agreement of indemnification or guaranty not entered into in the Ordinary Course ordinary course of Businessbusiness other than indemnification agreements between Predix or its subsidiaries and any of their officers or directors;
(iiie) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, Predix or its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesperson;
(ivf) each Contract any agreement, contract or commitment relating to capital expenditures and requiring payments after the date of this Agreement involving future obligations in excess of $200,000 pursuant to its express terms 25,000 and not cancelable without penalty;
(vg) each Contract any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise;
(vih) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: 25,000;
(Ai) any joint marketing or development agreement;
(j) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiik) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or paymentexcluding real and personal property leases) which involve payment by the Company Predix or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement subsidiaries under any such agreement, contract or commitment of $25,000 or more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company . Predix and its Subsidiariessubsidiaries have not, taken as a whole.
(b) The Company nor to Predix’s or its subsidiaries’ knowledge has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material ContractPredix Contract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the terms or conditions of, or Laws applicable toterminated any of the agreements, contracts or commitments to which Predix or its subsidiaries are a party or by which they are bound of the type described in clauses (a) through (k) above (any Company Material Contract such agreement, contract or commitment, a “Predix Contract”) in such manner as would permit any other party to cancel or terminate any such Company Material Predix Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Material Adverse Effect on Predix. As to the Company Predix and its Subsidiaries, as of the date of this Agreementsubsidiaries, each Company Material Predix Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms except as enforceability may be limited by bankruptcy and other similar laws and general principles of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractequity.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in the Buyer SEC Reports or on Section 2.14(a) 5.20 of the Company Buyer Disclosure Schedule lists the following Company Contracts in effect as Letter, neither Buyer nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Buyer’s Board of Directors, other than those that would be a material contract as defined in Item 601(b)(10are terminable by Buyer or any of its subsidiaries on no more than thirty (30) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Buyer;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale, license, distribution, reselling or other transfer of Businesssoftware products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Buyer or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business presently conducted by Buyer or any subsidiary, or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Buyer or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets which Buyer or any of its subsidiaries has any material ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Buyer’s subsidiaries;
(vi) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Buyer or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which Buyer or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Buyer or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Buyer and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Buyer product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Buyer product, services or technology, except agreements with manufacturers or distributors or sales representative in the normal course of business cancelable without penalty upon written notice of sixty (60) days or less;
(ix) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each Contract with any Governmental Body;material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such material agreement, contract or commitment currently in force that is outside the ordinary course of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess business and that has a value of $500,000 250,000 or more within a twelve (12) month period in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeany individual case.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Buyer nor any of its Subsidiariessubsidiaries, nor, nor to the CompanyBuyer’s Knowledge, knowledge any other party to a Company Material ContractBuyer Contract (as defined below), has breachedis in material breach, violated violation or defaulted default under, or and neither Buyer nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Buyer or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Buyer Disclosure Letter (any such agreement, any Company Material Contract contract or commitment, a “Buyer Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Buyer Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Sources: Stock Purchase Agreement (Qpagos)
Agreements, Contracts and Commitments. (a).
(a) Section 2.14(a4.13(a) of the Company PubCo Disclosure Schedule lists the following Company PubCo Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company PubCo Material Contract” and collectively, the “Company PubCo Material Contracts”):
(i) each PubCo Contract that would be a relating to any material contract as defined in Item 601(b)(10) of Regulation Sbonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(ii) each PubCo Contract requiring payments by PubCo after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any current PubCo Associate that is not immediately terminable at-will by PubCo without notice, severance, or other similar cost or liability;
(iii) each PubCo Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan, stock purchase plan, severance plan, policy or agreement, any of the payments or benefits of which will be increased, or the vesting of benefits or payments of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the payments or benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iv) each PubCo Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each PubCo Contract containing (A) any covenant limiting the freedom of the CompanyPubCo, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of PubCo’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the Company or any ability of PubCo to conduct its Subsidiariesbusiness;
(ivvi) each PubCo Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(vvii) each PubCo Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000;
(viviii) each PubCo Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances in each case in excess of $100,000 with respect to any assets of the Company PubCo or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesPubCo;
(viiix) each PubCo Contract requiring payment by or to the Company or any of its Subsidiaries PubCo after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; PubCo, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries PubCo has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries PubCo has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; PubCo or (D) any Contract to license any Patent, trademark registration, service ▇▇▇▇ registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries PubCo or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesPubCo, in each case, except for PubCo Contracts entered into in the Ordinary Course of Business;
(viiix) each PubCo Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company PubCo in connection with the Contemplated Transactions;
(ixxi) each Company PubCo Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each PubCo Contract containing any royalty, dividend to which PubCo is a party or similar arrangement based on the revenues or profits of the Company or by which any of its Subsidiariesassets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, PubCo in excess of $100,000; or
(xiii) any other PubCo Contract that is not terminable at will (with no penalty or payment) by the Company PubCo or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company PubCo or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company PubCo and its Subsidiaries, taken as a whole.
(b) The Company PubCo has delivered or made available to Parent the Company accurate and complete copies of all Company PubCo Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company PubCo Material Contracts that are not in written form. As Neither PubCo nor any of its Subsidiaries has, nor to PubCo’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company PubCo Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company PubCo Material Contract in such manner as would permit any other party to cancel or terminate any such Company PubCo Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a PubCo Material Adverse Effect. As to the Company PubCo and its Subsidiaries, as of the date of this Agreement, each Company PubCo Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company PubCo Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries PubCo under any Company PubCo Material Contract or any other material term or provision of any Company PubCo Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following identifies each Company Contracts Contract in effect as of the date of this Agreement (that involves payment or receipt by the Company of more than $10,000 in the aggregate, or obligations after the date of this Agreement in excess of $10,000 in the aggregate other than any Company Benefit Plans) Plans and includes: (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 10,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
; (xix) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based IP Rights Agreement required to be listed on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.12(c)or Section 2.12(d) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.;
Appears in 1 contract
Sources: Merger Agreement (BioPharmX Corp)
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a) 3.20 of the Company Twin Vee Co. Disclosure Schedule lists the following Company Contracts in effect as Letter, neither Twin Vee Co. nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Twin Vee Co.’s Board of Directors, other than those that would be a material contract as defined in Item 601(b)(10are terminable by Twin Vee Co. or any of its subsidiaries on no more than thirty (30) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Twin Vee Co.;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale, license, distribution, reselling or other transfer of Businesssoftware products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Twin Vee Co. or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business presently conducted by Twin Vee Co. or any subsidiary, or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Twin Vee Co. or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets which Twin Vee Co. or any of its subsidiaries has any material ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Twin Vee Co.’s subsidiaries;
(vi) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Twin Vee Co. or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which Twin Vee Co. or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Twin Vee Co. or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Twin Vee Co. and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Twin Vee Co. product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Twin Vee Co. product, services or technology, except agreements with manufacturers or distributors or sales representative in the normal course of business cancelable without penalty upon written notice of sixty (60) days or less;
(ix) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each Contract with any Governmental Body;material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such material agreement, contract or commitment currently in force that is outside the ordinary course of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess business and that has a value of $500,000 250,000 or more within a twelve (12) month period in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeany individual case.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Twin Vee Co. nor any of its Subsidiariessubsidiaries, nor, nor to the CompanyTwin Vee Co.’s Knowledge, knowledge any other party to a Company Material ContractTwin Vee Co. Contract (as defined below), has breachedis in material breach, violated violation or defaulted default under, or and neither Twin Vee Co. nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Twin Vee Co. or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Twin Vee Co. Disclosure Letter (any such agreement, any Company Material Contract contract or commitment, a “Twin Vee Co. Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Twin Vee Co. Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Each Parent Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions provision or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions provision applicable to the Company Parent or any of its Subsidiaries;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Parent Contract requiring payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xix) each Company Parent Out-bound License and Company Parent In-bound License;
(xiixi) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or
(xiiixii) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment Parent Contract of more than $200,000 50,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As None of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, Subsidiaries nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a4.19(a) of the Company Disclosure Schedule lists Letter hereto sets forth a complete and accurate list of all of the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plansas may be entered into, amended, modified, renewed, extended terminated or replaced prior to Closing as permitted by Section 6.1 or as consented to by Purchaser) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of which the Company or any of its Subsidiaries is bound or to which any loans of their respective assets or debt obligations with officers or directors properties is subject (collectively, the “Material Contracts”) specifying the parties thereto:
(i) Any agreement containing (A) covenants that materially restrict the ability of the Company or its Subsidiaries to compete with any of Person or conduct its Subsidiariesbusiness in any business or geographic area, (B) exclusivity covenants, (C) standstill provisions, or (D) “most favored nation” clauses;
(viiii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution Any agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations created, incurred, assumed, guaranteed or secured Indebtedness under which at least $250,000 is outstanding;
(iii) Any agreement relating to develop outstanding letters of credit or market performance bonds or creating any productliability as guarantor, technology surety, co-signer, endorser, co-maker or serviceindemnitor, in each case in respect of the obligation of any Person to make payments or any perform services with a potential value of at least $250,000;
(iv) Any agreement pursuant to which (A) payments were made during the twelve-month period ended on March 31, 2015, or (B) payments are reasonably anticipated by the Company to be made during the twelve-month period ending on March 31, 2016, in each case by, or to, the Company and its Subsidiaries in excess of $500,000;
(v) Any agreement relating to the acquisition or disposition of any material business, operations or division (whether by merger, sale of stock, sale of assets or otherwise) to the extent any material unresolved claims or actual or contingent express obligations of any party thereunder remain;
(vi) Any Material Employee Agreement;
(vii) Any agreement that is a collective bargaining agreement;
(viii) Any Contract under which any of the Company or its Subsidiaries is lessee of any tangible property (other than real property), owned by any other Person, except for any Contracts under which the aggregate annual rental payments do not exceed $120,000;
(ix) Any Contract under which any of the Company or its Subsidiaries has continuing obligations is lessor of any tangible property (other than real property), owned or controlled by the Company, except for any Contracts under which the aggregate annual rental payments do not exceed $60,000;
(x) Any joint venture, partnership, profit sharing or similar agreements;
(xi) Any Contract pursuant to develop which (A) any of the Company or its Subsidiaries grants to another Person a license to use any Company Intellectual Property (other than any licenses implied by the sale or provision of a product or service) and (B) any Person grants a license to any of the Company or its Subsidiaries to use any Intellectual Property Rights that will not be owned, or Computer Software other than of “off the shelf” software or “click” through licenses arising in whole or the ordinary course (other than nondisclosure agreements entered into in part, by connection with the potential sale of the Company or potential joint ventures involving the Company or a Subsidiary thereof);
(xii) Any Contract with a third party with respect to which the primary purpose is the requirement of a third party to maintain the confidentiality of Company’s or any of its Subsidiaries; ’ proprietary or (D) any Contract to license any third party to manufacture confidential information other than nondisclosure agreements entered with customers and prospects in the ordinary course and nondisclosure agreements entered in connection with the potential sale of the Company or produce any product, service potential joint ventures involving the Company or technology a Subsidiary thereof or the primary purpose is the requirement of the Company or any of its Subsidiaries to maintain the confidentiality of such third party’s proprietary or confidential information;
(xiii) Any Contract prohibiting the issuance, distribution or pledging of equity securities of any Contract to sell, distribute Subsidiary of the Company;
(xiv) Any Contracts or commercialize any products or service of arrangements between the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues one hand, and any employee, officer, director, stockholder, equityholder, member or profits Affiliate of the Company or any of its Subsidiaries; or
Subsidiaries (xiii) any other Contract that is not terminable at will (with no penalty or payment) by than the Company or its Subsidiaries), or, any individual in such employee’s, officer’s, director’s, stockholder’s, equityholder’s, member’s or Affiliate’s immediate family, as applicableapplicable (each, a “Related Person”), on the other hand (other than compensation agreements and arrangements entered into with Employees in the ordinary course);
(Axv) which involves payment Each customer Contract where for the month ending on March 31, 2015, generated monthly recurring revenue of $50,000 or receipt more; and
(xvi) Any Contract that addresses the provisions for Business Associate contracts required by 45 C.F.R. § 164.504(e) or § 164.314(a), as amended.
(b) Each Material Contract was entered into at arms’ length and in the ordinary course, is in full force and effect and is valid and binding upon and enforceable against the Company or its Subsidiaries after the date of this Agreement under any such agreementapplicable Subsidiary and, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business Company’s knowledge, each other party thereto (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or operations similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies). True, correct and complete copies of all Material Contracts have previously been made available to Purchaser.
(c) Except as set forth in Section 4.19(c) of the Company Disclosure Letter, (i) each of the Company and its Subsidiaries, taken as a whole.
applicable, has performed all material obligations required to be performed by it to date under each Material Contract, (bii) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, norSubsidiaries or, to the Company’s Knowledgeknowledge, any other party to a Company Material Contractthereto is, has breachedin any material respect, violated in breach of or defaulted in default under, and no event has occurred which with notice or received notice that it breached, violated lapse of time or defaulted both would become a breach of or default in any material respect under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to and (iii) none of the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or Subsidiaries has a right pursuant to the terms received written notice of any Company Material Contract to change, any material amount paid breach of default or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractevent described in clause (ii).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Disclosure Schedule Letter lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) the Subscription Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement non-solicitation provision;
(iii) each Company Contract (A) pursuant to purchase minimum quantity of goods or serviceswhich any Person granted the Company an exclusive license under any Intellectual Property, or (EB) any material non-solicitation provisions applicable pursuant to which the Company or granted any of its SubsidiariesPerson an exclusive license under any Company IP Rights;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or of a product;
(vi) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $250,000 after the date of this Agreement;
(vivii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiviii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiiix) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Transactions and requiring payments by Company Real Estate Leaseafter the date in this Agreement in excess of $250,000 pursuant to its express terms;
(x) each Company Contract with to which the Company is a party or by which any Governmental Bodyof its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $1,000,000;
(xi) each Company Out-bound License and Contract entered into in settlement of any Legal Proceeding or other dispute pursuant to which the Company In-bound Licensehas outstanding obligations to pay consideration in excess of $250,000;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole; or
(xiii) Company Real Estate Leases.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit a manner, and, if such Company Material Contract provides for a cure period, the Company or such other party fails to have cured such breach, violation or default, so that any other party or the Company, as the case may be, is permitted to modify, cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
(c) The Subscription Agreement is in full force and effect with respect to, and binding on, the Company and, to the Knowledge of the Company, on each investor party thereto, in accordance with its terms. Other than the Subscription Agreement or as contemplated thereby, except as set forth in Section 3.13(c) of the Company Disclosure Letter, there are no other Contracts, including side letters, entered into by the Company in connection with the Company Pre-Closing Financing.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (InMed Pharmaceuticals Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):and:
(i) each Contract that would be is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any is an agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing contains (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Contract relating relates to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating relates to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating relates to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Contract requiring requires payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or TABLE OF CONTENTS any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract is with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent or its Subsidiaries in connection with the Contemplated Transactions;
(ix) each Company is a Parent Real Estate Lease;
(x) each is a Contract with any Governmental Body;
(xi) each Company is a Parent Out-bound License and Company or Parent In-bound License;
(xii) each any Parent Investor Agreement;
(xiii) is a Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or
(xiiixiv) is any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 25,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent or its Subsidiaries is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Neither the Parent nor any of its Subsidiaries nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or any of its Subsidiaries or its business or operationsbusiness. As to the Company Parent and any of its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) of Except as set forth on Schedule 2.23(a), neither the Company Disclosure Schedule lists the following Company Contracts in effect as nor any of the date of this Agreement (other than any Company Benefit Plans) (eachits subsidiaries has, is a “Company Material Contract” and collectivelyparty to, the “Company Material Contracts”):or is bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any fidelity or surety bond or completion bond;
(ii) each Contract relating to any lease of personal property having a value individually in excess of $25,000;
(iii) any agreement of indemnification or guaranty not guaranty, other than such indemnification obligations in the software license agreements of the Company and its subsidiaries entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practices and which indemnification obligations are capped at an amount not to exceed the revenues generated under such agreements;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Personperson, (B) including without limitation, any “most-favored nations” pricing provisions or marketing exclusive license agreements or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesagreements;
(ivv) each Contract any agreement, contract or commitment relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty10,000 individually or $25,000 in the aggregate;
(vvi) each Contract any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of business;
(vivii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect credit, including guaranties referred to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariesin clause (iii) hereof;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Aviii) any distribution agreement purchase order or contract for the purchase of raw materials involving $25,000 or more;
(identifying any that contain exclusivity provisions); (Bix) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; construction contract;
(Cx) any dealer, distributordistribution, joint marketingmarketing or development agreement;
(xi) any agreement, alliance, joint venture, cooperation, collaboration, development contract or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement commitment pursuant to which the Company or any of its Subsidiaries subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole granted or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into may grant in the Ordinary Course of Business;
(viii) each Contract with future, to any Person, including any financial advisor, broker, finder, investment banker party a source-code license or option or other Person, providing advisory services right to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Outuse or acquire source-bound License and Company In-bound License;code; or
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of that involves $25,000 or more or is not cancelable without penalty on no more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or thirty (B30) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholedays notice.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set Schedule 2.23(b) sets forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none a list of the Company's top 15 customers according to revenue for the fiscal year ended June 30, 2003. Schedule 2.23(b) lists all effective agreements between such customers and the Company.
(c) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.23(c), neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, subsidiaries has materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected contract required to be material to the Company set forth on Schedule 2.23(a), Schedule 2.23(b) or its business or operationsSchedule 2.12. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract Each such contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Schedule 2.23(c), is not subject to any default thereunder of which the Enforceability Exceptions. No Person is renegotiating, or Company has a right pursuant to the terms of Knowledge by any Company Material Contract to change, any material amount paid or payable party obligated to the Company or any of its Subsidiaries under subsidiaries pursuant thereto.
(d) Schedule 2.23(d) sets forth all rights of return provided by the Company to any Company Material Contract customer or distributor, and describes any other material term or provision exercise of any Company Material Contractsuch rights during the past 12 months.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.9 of the Tranzyme Disclosure Schedule identifies, except for Tranzyme Contracts set forth in Part 3.13 of the Tranzyme Disclosure Schedule:
(a) Section 2.14(a) each Tranzyme Contract in excess of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject $25,000 relating to the public reporting requirements retention of , or the Exchange Act)performance of services by any individual consultant or independent contractor not terminable by Tranzyme or its Subsidiaries on ninety (90) or fewer days’ notice without liability;
(iib) each Tranzyme Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Tranzyme and any of its officers or directors;
(iiic) each Tranzyme Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyTranzyme, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivd) each Tranzyme Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 25,000 and not cancelable without penalty;
(ve) each Tranzyme Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each Tranzyme Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $25,000 or creating any material Encumbrances with respect to any assets of the Company Tranzyme or any Subsidiary of its Subsidiaries Tranzyme or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesTranzyme;
(viig) each Tranzyme Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant 25,000 relating to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Tranzyme or any of its Subsidiaries; , (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Tranzyme or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Tranzyme or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Tranzyme or any such Subsidiary of its SubsidiariesTranzyme; or (Div) any Contract currently in force to license any third party to manufacture or produce any Tranzyme product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Tranzyme products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiih) each Tranzyme Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Tranzyme in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiii) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company Tranzyme or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $25,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (Bii) that is material to the business or operations of the Company Tranzyme and its Subsidiaries, taken as a whole.
(b) The Company . Tranzyme has delivered or made available to Parent the Company accurate and complete (except for applicable redactions thereto) copies of all material written Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material material Tranzyme Contracts that are not in written form. As Except as set forth on Part 3.9 of the date Tranzyme Disclosure Schedule, neither Tranzyme nor any Subsidiary of this AgreementTranzyme has, none of the Company, any of its Subsidiaries, nor, nor to the CompanyTranzyme’s Knowledge, has any other party to a Company Tranzyme Material ContractContract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Tranzyme or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (i) above or any Tranzyme Contract listed in Part 3.13 of the Tranzyme Disclosure Schedule (any such agreement, any Company contract or commitment, a “Tranzyme Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Tranzyme Material Contract, or would permit any other party to seek damages damages, which has had or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Tranzyme Material Adverse Effect. As to the Company Tranzyme and its Subsidiaries, as of the date of this Agreement, each Company Tranzyme Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the Enforceability Exceptionsrelief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions will not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from Tranzyme, any Subsidiary of Tranzyme, or the Surviving Corporation to any Person under any Tranzyme Contract or give any Person the right to terminate or alter the provisions of any Tranzyme Contract. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries Tranzyme under any Company Tranzyme Material Contract or any other material term or provision of any Company Tranzyme Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Tranzyme Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company Parent or any of its Subsidiaries;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Parent Contract requiring payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 300,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 300,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, norSubsidiaries or, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Subsections (i) through (vii) of Section 2.14(a4.11(a) of the Company Interpore Disclosure Schedule lists contain a list of the following Company Contracts types of contracts and agreements to which Interpore or any Subsidiary is a party (such contracts, agreements and arrangements as are required to be set forth in effect as Section 4.11(a) of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, Interpore Disclosure Schedule being referred to herein collectively as the “Company "Interpore Material Contracts”"):
(i) each Contract that would be all distributor, manufacturer's representative, broker, franchise, agency and dealer contracts and agreements to which Interpore or any Subsidiary is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)party;
(ii) each Contract relating to all contracts with physicians and any agreement of indemnification or guaranty not entered into in the Ordinary Course of Businessscientific advisory board members;
(iii) each Contract containing all contracts with independent contractors or consultants (or similar arrangements) to which Interpore or any Subsidiary is a party and which: (A) any covenant limiting are reasonably likely to involve consideration of more than $150,000 in the freedom aggregate during the calendar year ended December 31, 1998, or (B) are reasonably likely to involve consideration of more than $150,000 in the aggregate over the remaining term of the Companycontract;
(iv) all contracts and agreements (excluding routine checking account overdraft agreements involving pett▇ ▇▇▇h amounts) under which Interpore or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness or under which Interpore or any Subsidiary has imposed (or may impose) a lien on any of its Subsidiaries assets, whether tangible or intangible, to secure indebtedness;
(v) all contracts and agreements that limit the Surviving Corporation ability of Interpore or any Subsidiary or, after the Effective Time, Interpore or any of its affiliates, to engage compete in any line of business or compete with any Person, (B) person or in any “most-favored nations” pricing provisions geographic area or marketing or distribution rights related to during any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity period of goods or servicestime, or (E) to solicit any material non-solicitation provisions applicable to the Company customer or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entityclient;
(vi) each Contract relating to any mortgages, indentures, loans, notes all contracts and agreements between or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company among Interpore or any Subsidiary, on the one hand, and any affiliate of its Subsidiaries or any loans or debt obligations with officers or directors of Interpore (other than a wholly owned Subsidiary), on the Company or any of its Subsidiaries;other hand; and
(vii) each Contract requiring payment by all other contracts or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and agreements (A) which involves payment or receipt by the Company or are material to Interpore and its Subsidiaries after or the date conduct of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, their respective businesses or (B) that is the absence of which would have an Interpore Material Adverse Effect or (C) which are believed by Interpore to be of unique value to Interpore even though not material to the business or operations of the Company and its Subsidiaries, taken as a wholeInterpore.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth would not, individually or in Section 2.14(bthe aggregate, have an Interpore Material Adverse Effect, each contract referred to in paragraphs (ii) and (vii) above and each other material contract or agreement of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Interpore or any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies Subsidiary which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.have been
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a) 3.20 of the Company Synergy Disclosure Schedule lists the following Company Contracts in effect as Letter, neither Synergy nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Synergy’s Board of Directors, other than those that would be a material contract as defined in Item 601(b)(10are terminable by Synergy or any of its subsidiaries on no more than thirty (30) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Synergy;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale, license, distribution, reselling or other transfer of Businesssoftware products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Synergy or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business presently conducted by Synergy or any subsidiary, or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Synergy or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets which Synergy or any of its subsidiaries has any material ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Synergy’s subsidiaries;
(vi) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Synergy or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which Synergy or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Synergy or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Synergy and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Synergy product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Synergy product, services or technology, except agreements with manufacturers or distributors or sales representative in the normal course of business cancelable without penalty upon written notice of sixty (60) days or less;
(ix) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each Contract with any Governmental Body;material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such material agreement, contract or commitment currently in force that is outside the ordinary course of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess business and that has a value of $500,000 250,000 or more within a twelve (12) month period in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeany individual case.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Synergy nor any of its Subsidiariessubsidiaries, nor, nor to the CompanySynergy’s Knowledge, knowledge any other party to a Company Material ContractSynergy Contract (as defined below), has breachedis in material breach, violated violation or defaulted default under, or and neither Synergy nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Synergy or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Synergy Disclosure Letter (any such agreement, any Company Material Contract contract or commitment, a “Synergy Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Synergy Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than and under which the Company or any Company Benefit Plans) of its Subsidiaries has any remaining material rights or obligations (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision, in each case, except for restrictions that would not materially affect the ability of the Company or any of and its SubsidiariesSubsidiaries to conduct its business;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $250,000, other than Company Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing liabilities or obligations;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating toand constituting: (A) any an exclusive distribution agreement (identifying any that contain exclusivity provisions)agreement; (B) any an agreement involving provision of material services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any a dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other similar agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any an agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any a Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each casecase under clauses (A) through (D), except for Company Contracts that are entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Bodythat would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act if the Company were subject to such regulation;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or;
(xii) each (A) Company Contract, offer letter, employment agreement or other agreement with any employee that requires payment of base salary and target annual cash bonus in excess of $150,000 in any calendar year that (1) provides for employment by the Company or any of its Subsidiaries and is not immediately terminable at will by the Company without advance notice, severance, or other similar cost or liability (other than for accrued compensation, vacation or other amounts due upon any termination) or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event) and (B) each Company Contract, independent contractor agreement, or other agreement with any individual consultant or service provider requiring payment of fees in excess of $150,000 in any calendar year that (1) is not immediately terminable at will by the Company without more than 30 days’ prior notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event);
(xiii) each Company Contract under which a third party would be entitled to receive a license or have any other rights in, any material Company IP;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto, in each case in effect on the date of this Agreement. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Material Contract, has breached, violated or defaulted under, or as of the date of this Agreement received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and, as of the date of the Agreement, no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Sesen Bio, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a relating to any material contract as defined in Item 601(b)(10) of Regulation Sbonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by the Company on ninety (90) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit the Company’s or such successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iv) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(vvi) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest after the date of this Agreement valued in any Entityexcess of $100,000;
(vivii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiviii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any Intellectual Property to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiiix) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixx) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company OutContract that is a material contract as defined in Item 601(b)(10) of Regulation S-bound License and Company In-bound LicenseK as promulgated under the Securities Act;
(xii) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of to which the Company is a party or by which any of its Subsidiariesassets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $200,000; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 200,000 in the aggregate, or (B) that is material to the business or operations of the Company and its SubsidiariesCompany, taken as a whole.
(b) The Company has delivered or made available to Parent Milan accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As The Company has not, nor to the Company’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a2.20(a) of the Company Callisto Disclosure Schedule lists the following Company Contracts in effect as Letter, neither Callisto nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Callisto’s Board of Directors, other than those that would be a material contract as defined in Item 601(b)(10are terminable by Callisto or any of its subsidiaries on no more than thirty (30) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Callisto;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale, license, distribution, reselling or other transfer of Businesssoftware products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Callisto or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business presently conducted by Callisto or any subsidiary, or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Callisto or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets which Callisto or any of its subsidiaries has any material ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Callisto’s subsidiaries ;
(vi) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Callisto or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which Callisto or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Callisto or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Callisto and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Callisto Product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Callisto Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less;
(ix) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each Contract with any Governmental Body;material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such material agreement, contract or commitment currently in force that is outside the ordinary course of more than $200,000 in the aggregate, business or obligations after the date of this Agreement in excess that has a value of $500,000 250,000 or more within a twelve (12) month period in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeany individual case.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Callisto nor any of its Subsidiariessubsidiaries , nor, nor to the Companyit’s Knowledge, knowledge any other party to a Company Material ContractCallisto Contract (as defined below), has breachedis in material breach, violated violation or defaulted default under, or and neither Callisto nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Callisto or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Callisto Disclosure Letter (any such agreement, any Company Material Contract contract or commitment, a “Callisto Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Callisto Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, or employment agreement, or independent contractor agreement with any employee or service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable at will by the Company without notice, severance or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 50,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregate, or (B) that is material to the business or operations of the Company and its SubsidiariesCompany, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its Subsidiaries, norSubsidiaries has, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or any of its business Subsidiaries or operationstheir business. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company or any of its Subsidiaries that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Baudax Bio, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing containing: (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Company to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing TABLE OF CONTENTS obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCompany; or
(xiiixii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Subsections (i) through (vii) of Section 2.14(a3.11(a) of the Company Cross Disclosure Schedule lists contain a list of the following Company Contracts types of contracts and agreements to which Cross or any Subsidiary is a party (such contracts, agreements and arrangements as are required to be set forth in effect as Section 3.11(a) of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, Cross Disclosure Schedule being referred to herein collectively as the “Company "Cross Material Contracts”"):
(i) each Contract that would be all distributor, manufacturer's representative, broker, franchise, agency and dealer contracts and agreements to which Cross or any Subsidiary is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)party;
(ii) each Contract relating to all contracts with physicians and any agreement of indemnification or guaranty not entered into in the Ordinary Course of Businessscientific advisory board members;
(iii) each Contract containing all contracts with independent contractors or consultants (or similar arrangements) to which Cross or any Subsidiary is a party and which: (A) any covenant limiting are reasonably likely to involve consideration of more than $150,000 in the freedom aggregate during the calendar year ended December 31, 1998, or (B) are reasonably likely to involve consideration of more than $150,000 in the aggregate over the remaining term of the Companycontract;
(iv) all contracts and agreements (excluding routine checking account overdraft agreements involving pett▇ ▇▇▇h amounts) under which Cross or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness or under which Cross or any Subsidiary has imposed (or may impose) a lien on any of its Subsidiaries assets, whether tangible or intangible, to secure indebtedness;
(v) all contracts and agreements that limit the Surviving Corporation ability of Cross or any Subsidiary or, after the Effective Time, Interpore or any of its affiliates, to engage compete in any line of business or compete with any Person, (B) person or in any “most-favored nations” pricing provisions geographic area or marketing or distribution rights related to during any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity period of goods or servicestime, or (E) to solicit any material non-solicitation provisions applicable to the Company customer or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entityclient;
(vi) each Contract relating to any mortgages, indentures, loans, notes all contracts and agreements between or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company among Cross or any Subsidiary, on the one hand, and any affiliate of its Subsidiaries or any loans or debt obligations with officers or directors of Cross (other than a wholly owned Subsidiary), on the Company or any of its Subsidiaries;other hand; and
(vii) each Contract requiring payment by all other contracts or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and agreements (A) which involves payment or receipt by the Company or are material to Cross and its Subsidiaries after or the date conduct of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, their respective businesses or (B) that is the absence of which would have a Cross Material Adverse Effect or (C) which are believed by Cross to be of unique value to Cross even though not material to the business or operations of the Company and its Subsidiaries, taken as a wholeCross.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth would not, individually or in Section 2.14(bthe aggregate, have a Cross Material Adverse Effect, each contract referred to in paragraphs (ii) and (vii) above and each other material contract or agreement of Cross or any Subsidiary which would have been required to be disclosed in Sections 3.11(a)(ii) and (vii) of the Company Cross Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Schedule had such contract or agreement been entered into prior to the date of this Agreement, is a legal, valid and binding agreement, and none of the Company, any of Cross Material Contracts is in default by its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, had been canceled by the other party; Cross and its Subsidiaries are not in receipt of any Company Material Contract in such manner as would permit any other party to cancel or terminate claim of default under any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company agreement; and its Subsidiaries, as none of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company Cross or any of its Subsidiaries under anticipates any Company termination or change to, or receipt of a proposal with respect to, any such agreement as a result of the Merger or otherwise. Cross has furnished Interpore with true and complete copies of all Cross Material Contract or Contracts and any other material term or provision of any Company Material Contractand all amendments thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 2.14(a2.11(a) of the Company Disclosure Schedule lists Schedule, and except for any of the following for which neither the Company Contracts in effect or any subsidiary has any further liability or benefit owed by the counterparty, as of the date of this Agreement (other than any Agreement, each of the Company Benefit Plans) (each, and its subsidiaries is not a “Company Material Contract” and collectively, the “Company Material Contracts”):party to nor is it bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);any collective bargaining agreements,
(ii) each Contract relating to any agreements or arrangements that contain any severance pay, post-employment liabilities or obligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having annual lease payments individually in excess of $25,000,
(viii) any agreement of indemnification indemnification, warranty or guaranty not other than any such agreement entered into in the Ordinary Course ordinary course of Business;business or other than such indemnification, warranty or guaranty agreement which are substantially similar in nature to those provided in the ordinary course of business,
(iiiix) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Person, person,
(Bx) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract commitment relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;50,000,
(vxi) each Contract any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entity;business enterprise outside the ordinary course of the Company's business or any subsidiary's business,
(vixii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement other than sales on credit in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisionsordinary course); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or,
(xiii) any distribution, joint marketing or product development agreement,
(xiv) other Contract that is not terminable at will (with no penalty than outstanding purchase orders issued or payment) accepted by the Company or its Subsidiariessubsidiaries in the ordinary course of business, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment with (A) any customer which, during the last two fiscal years of the Company, accounted, or is expected to account during the Company's current fiscal year, for more than $200,000 in 10% of the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregateCompany's revenue, or (B) any vendor listed in Schedule 2.12, or
(xv) any other agreement, contract or commitment that requires or would reasonably be expected to require payment of $50,000 or more or is material to the business or operations of the Company and its Subsidiaries, taken as a wholenot cancelable without penalty within thirty (30) days.
(b) The Company has delivered Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or made available to Parent accurate and complete copies default with the lapse of time, giving of notice, or both, all Company Material Contracts, including all amendments thereto. Except as set forth noted in Section 2.14(b2.11(b) of the Company Disclosure Schedule, there are no neither the Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, subsidiaries has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any agreement, contract or Laws applicable to, any Company Material Contract commitment set forth in such manner as would permit any other party to cancel Section 2.10 or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to Section 2.11(a) of the Company or its business or operationsDisclosure Schedule (a "Company Contract"). As to the Each Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Section 2.11(b) of the Company Disclosure Schedule, is not subject to any default thereunder of which the Enforceability Exceptions. No Person Company or any subsidiary is renegotiating, or has a right pursuant to the terms of aware by any Company Material Contract to change, any material amount paid or payable party obligated to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractsubsidiary pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (SCM Microsystems Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 4.13 of the Company Parent Disclosure Schedule lists the following Company Contracts Letter identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a an “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined requiring payments by Parent or Blackbox Operating after the date of this Agreement in Item 601(b)(10excess of fifty thousand dollars ($50,000) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject pursuant to its express terms relating to the public reporting requirements employment of, or the performance of the Exchange Act)employment-related services by, any Parent Associate providing employment-related, consulting or independent contractor services, not terminable by Parent on thirty (30) calendar days’ or less notice without liability;
(ii) each Parent Contract relating to any agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased or guaranty not entered into the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the Ordinary Course value of Businessany of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Parent’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Parent Contract or contract of Blackbox Operating relating to capital expenditures and requiring payments after the date of this Agreement in excess of fifty thousand dollars ($200,000 50,000) pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of fifty thousand dollars ($50,000) after the date of this Agreement;
(vi) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute pursuant to which Parent or any of its Subsidiaries has outstanding obligations to pay consideration in excess of fifty thousand dollars ($50,000);
(vii) each Parent Contract relating to any mortgages, indentures, loans, notes or notes, credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of fifty thousand dollars ($50,000) or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viiviii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of fifty thousand dollars ($200,000 50,000) pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessterms;
(viiiix) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
Transactions and requiring payments by Parent after the date in this Agreement in excess of fifty thousand dollars (ix$50,000) each Company Real Estate Leasepursuant to its express terms;
(x) each Parent Contract with to which Parent is a party or by which any Governmental Body;of their assets and properties is currently bound (other than Parent Real Estate Leases), which involves annual obligations of payment by, or annual payments to, Parent in excess of fifty thousand dollars ($50,000); or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableParent, and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than fifty thousand dollars ($200,000 50,000) in the aggregate, or obligations after the date of this Agreement in excess of fifty thousand dollars ($500,000 50,000) in the aggregate, aggregate or (B) that is material to the business or operations of the Company and its Subsidiaries, Parent taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit a manner, and, if such Parent Material Contract provides for a cure period, Parent or such other party fails to have cured such breach, violation or default, so that any other party or Parent, as the case may be, is permitted to modify, cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Parent Material Adverse Effect. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 5.20 of the Company Companies Disclosure Schedule lists the following Company Contracts in effect Schedules sets forth, as of the date of this Agreement (other than any Company Benefit Plans) (eachhereof, a “Company Material Contract” complete and collectivelyaccurate list of all of the following Contracts to which the Companies or any of their Subsidiaries are a party or otherwise bound (together with the Real Property Leases, the “Company Material Contracts”):), specifying the parties thereto:
(i) each Contract any engagement letter with clients entered into since the Reference Date that would reasonably be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act expected to result (assuming the Company was subject such engagement is successfully carried out) in payment or consideration to the public reporting requirements Companies or any of the Exchange Act)their Subsidiaries in excess of $100,000;
(ii) each any Contract relating (other than engagement letters) for the provision of services by the Companies or any of their Subsidiaries to any agreement clients involving aggregate payments or consideration in excess of indemnification or guaranty not entered into in the Ordinary Course of Business$25,000;
(iii) each any Contract containing (A) under which the Companies or any covenant limiting the freedom of the Company, its their Subsidiaries would incur any change-in-control payment or the Surviving Corporation similar compensation obligation to engage in any line of business or compete with any Person, (B) including any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryEmployee, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity by reason of goods or services, or (E) any material non-solicitation provisions applicable to the Company or consummation of any of its Subsidiariesthe transactions contemplated by this Agreement;
(iv) each any Contract under which the Companies or any of their Subsidiaries have advanced or loaned any amount to any Person, other than advances to employees relating to capital expenditures expenses and requiring payments after travel, in each case, in the date ordinary course of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penaltybusiness;
(v) each any Contract relating to containing rights or obligations of, or restrictions on, any equityholder in the disposition Companies or acquisition of material assets or any ownership interest their Subsidiaries (in any Entitysuch equityholder’s capacity as such);
(vi) each any Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to under which the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Companies or any of its their Subsidiaries or have continuing material indemnification obligations to any loans or debt obligations with officers or directors Person, other than those entered into in the ordinary course of the Company or any of its Subsidiariesbusiness;
(vii) each any Contract requiring payment by or to the Company or other than a Plan containing a material Restrictive Covenant that binds any of its the Companies or their respective Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisionsother than a confidentiality obligation); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each (A) any Contract under which the Companies or any of their Subsidiaries have created, incurred, assumed, guaranteed or secured Indebtedness (other than Contracts with respect to capitalized or synthetic lease obligations (as determined in accordance with GAAP)) and (B) any Contract with respect to any Person, including any financial advisor, broker, finder, investment banker material capitalized or other Person, providing advisory services to the Company synthetic lease obligations (as determined in connection accordance with the Contemplated TransactionsGAAP);
(ix) any Contract relating to outstanding letters of credit or performance bonds or creating any material liability as guarantor, surety, co-signer, endorser, co-maker or indemnitor, in each Company Real Estate Leasecase in respect of the obligation of any third party to make payments or perform services;
(x) each any Contract with relating to the acquisition or disposition on a principal basis by the Companies or any Governmental Bodyof their Subsidiaries of any material business, operations or division (whether by merger, sale of stock, sale of assets or otherwise) to the extent any material unresolved claims or actual or contingent express material obligations or potential liabilities of any party thereunder remain;
(xi) each Company Out-bound License any employment Contract with any professional employee and Company In-bound Licenseany contract with an individual independent contractor with respect to their services whose annual compensation equals or exceeds $25,000 per year;
(xii) each any Contract containing any royalty, dividend or similar arrangement based on pursuant to which the revenues or profits of the Companies license Licensed Company or any of its Subsidiaries; orIntellectual Property;
(xiii) any Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the business of the Companies;
(xiv) any Contract relating to the settlement of any material Proceeding or the waiver or release of any material rights or material claims in respect of any material Proceeding, in each case entered into after January 1, 2012;
(xv) any Contract with any Governmental Authority entered into after the Reference Date and any material Contract with any Governmental Authority (other than engagement letters) entered into before the Reference Date; and
(xvi) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company Companies and its their Subsidiaries, taken as a whole.
(b) The Company has delivered Each Material Contract (and any Contract entered into after the date hereof which would have been a Material Contract if it had been entered into prior to the date hereof) is valid and binding upon and enforceable against each of the Companies or made available Subsidiaries party thereto, and to Parent accurate the knowledge of the Companies, each of the other parties thereto (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Legal Requirements affecting creditors’ rights generally or by principles governing the availability of equitable remedies). True, correct and complete copies of all Company Material Contracts, Contracts (including all amendments schedules, exhibits, amendments, supplements, renewals, extensions and guarantees thereto. Except as set forth in Section 2.14(b) of have previously been made available to Purchaser.
(c) Neither the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Companies (or their Subsidiaries, ) nor, to the Company’s KnowledgeCompanies’ knowledge as of the date hereof, any other party to a Company Material Contract, has breached, violated thereto is in material breach of or defaulted in material default under, and no event has occurred which with notice or received notice that it breached, violated lapse of time or defaulted under, any both would become a material breach of or material default of the terms Companies or conditions oftheir Subsidiaries, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to Knowledge of the Company and its Subsidiaries, Companies as of the date of this Agreementhereof, each Company any other party thereto, under, any Material Contract is valid, binding, enforceable and in full force and effect, subject (or any Contract entered into after the date hereof which would have been a Material Contract if it had been entered into prior to the Enforceability Exceptions. No Person is renegotiatingdate hereof), or has a right pursuant and prior to the terms date hereof no party to any Material Contract has given the Companies any written notice of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision claim of any Company Material Contractsuch breach, default or event.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);Act;
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company Parent or any of its Subsidiaries;Subsidiaries;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;Subsidiaries;
(vii) each Parent Contract requiring payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 300,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has have continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has have continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;Business;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;Transactions;
(ix) each Company Parent Real Estate Lease;Lease;
(x) each Parent Contract with any Governmental Body;Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License;License;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; Subsidiaries; or
(xiii) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 300,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, norSubsidiaries or, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth in Section 2.14(a2.11(a) of the Company Lanacom Disclosure Schedule lists the following Company Contracts in effect as Schedule, neither Lanacom nor any of the date Lanacom Subsidiaries have continuing obligations under, nor are any of this Agreement (other than any Company Benefit Plans) (each, them a “Company Material Contract” and collectively, the “Company Material Contracts”):party to nor are bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any voluntary recognition agreements, accreditation order or collective bargaining agreements;
(ii) each Contract relating to any agreement agreements or arrangements that contain any severance pay, post- employment liabilities or obligations or "golden parachute" provisions (or similar provisions which provide for payment of indemnification or guaranty not entered into in consideration upon the Ordinary Course completion of Businessthe transactions contemplated herein);
(iii) each Contract any bonus, incentive, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having annual lease payments individually in excess of $25,000;
(viii) any agreement of indemnification, warranty or guaranty other than in the ordinary course of business;
(ix) any agreement, contract or commitment containing (A) any covenant limiting the freedom of Lanacom or any of the Company, its Lanacom Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesperson;
(ivx) each Contract any agreement, contract or commitment relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty25,000;
(vxi) each Contract any agreement, contract or commitment relating to the disposition or acquisition of any material assets assets, or any ownership interest in any Entitybusiness enterprise outside the ordinary course of Lanacom and the Lanacom Subsidiaries' business, taken as a whole;
(vixii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will distribution, joint marketing or development agreement;
(with no penalty or paymentxiv) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment with any customer which, during the last two fiscal years of Lanacom, accounted, or is expected to account during Lanacom's current fiscal year, for more than 5% of Lanacom's revenue or trade payables;
(xv) any other agreement, contract or commitment that involves $200,000 in the aggregate25,000 or more or is not cancelable without penalty within thirty (30) days;
(xvi) transfer or license to any third party or otherwise extend, amend or obligations after the date modify any rights to Lanacom Intellectual Property or acquire, license or otherwise procure any intellectual property right of this Agreement in excess of $500,000 in the aggregate, any third party; or
(xvii) enter into any agreement restricting Lanacom or (B) that is material to the business or operations any of the Company and its Subsidiaries, taken as a wholeLanacom Subsidiaries from any business activity.
(b) The Company has delivered Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or made available to Parent accurate and complete copies default with the lapse of time, giving of notice, or both, all Company Material Contracts, including all amendments thereto. Except as set forth noted in Section 2.14(b2.11(b) of the Company Lanacom Disclosure Schedule, there are no Company Material Contracts that are not in written form. As neither Lanacom nor any of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has Lanacom Subsidiaries have breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any agreement, contract or Laws applicable to, any Company Material Contract commitment to which it is bound (including those set forth in such manner as would permit any other party to cancel or terminate the Lanacom Disclosure Schedule (any such Company Material Contractagreement, contract or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company commitment, of Lanacom or its business or operationsSubsidiaries (a "Lanacom Contract")). As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Each Lanacom Contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Section 2.11(b) of the Lanacom Disclosure Schedule, is not subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms any default thereunder of any Company Material Contract to change, any material amount paid or payable to the Company which Lanacom or any of its the Lanacom Subsidiaries under is aware by any Company Material Contract party obligated to Lanacom or any other material term or provision of any Company Material Contractthe Lanacom Subsidiaries pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Acquisition (Backweb Technologies LTD)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit Plans) Plans (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting in any material respect the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than Parent or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, option to receive a license, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than Parent, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into in the Company or any Ordinary Course of its SubsidiariesBusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 150,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or individual independent contractor agreement with any employee, individual independent contractor or other natural person service provider whose annual compensation equals or exceeds $100,000 that (A) is not immediately terminable at will by Parent without notice, severance, retention or other cost or liability, except as required under applicable Law, or (B) provides for retention payments, change-of-control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger;
(xiv) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xv) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License; and
(xvi) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 1 contract
Sources: Merger Agreement (BiomX Inc.)
Agreements, Contracts and Commitments. The TARGET Disclosure Schedule ------------------------------------- contains a true and complete list of all material contracts, agreements, commitments and other instruments (identified by title, date and parties) (whether oral or written), to which TARGET or its Subsidiaries is a party, including all:
(a) Section 2.14(a) material leases, rental agreements or other contracts or commitments affecting the ownership or leasing of, title to or use of the Company Disclosure Schedule lists the following Company Contracts any interest in effect as real or personal property and all maintenance or service agreements relating to any real or personal property requiring payments in excess of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)$100,000 per annum;
(iib) each Contract relating to contracts or commitments providing for payments by TARGET or its Subsidiaries in excess of $50,000 per annum based in any manner upon the sales, purchases, receipts, income or profits of TARGET or its Subsidiaries;
(c) any fidelity or surety or completion bond;
(d) any agreement of indemnification or guaranty not entered into issued other than in the Ordinary Course of Business;
(iiie) each Contract containing license agreements;
(Af) any covenant limiting the freedom of the Company, its Subsidiaries employment contracts or the Surviving Corporation to engage in any line of business commitments regarding employees or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company independent contractors requiring annual payments by TARGET or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date Subsidiaries of this Agreement an amount in excess of $200,000 pursuant 50,000; and any other material contracts, plans or commitments providing for any continuing payment of any type or nature, including, without limitation, any severance, termination, parachute, or other payments (whether due to a change in control, termination or otherwise) and bonuses and vested commissions, in each case, requiring payments by TARGET or any of its express terms and not cancelable without penaltySubsidiaries of an amount in excess of $50,000 in any 12-month period;
(vg) each Contract any collective bargaining agreements;
(h) instruments or arrangements evidencing or related to Indebtedness for money borrowed or to be borrowed, whether directly or indirectly, by way of purchase-money obligation, guaranty, subordination, conditional sale, lease- purchase or otherwise;
(i) any agreement relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the Ordinary Course of the Business;
(vij) each Contract relating joint product development agreements with any party other than BUYER;
(k) except as provided in agreements disclosed elsewhere on the TARGET Disclosure Schedule, any written arrangement concerning non-competition;
(l) agreements with any employee, or Plans, the benefits of which are contingent on, or the terms of which are materially altered upon, the occurrence of a transaction of the nature contemplated by this Agreement involving TARGET or its Subsidiaries; and
(m) agreements or Plans the benefits of which will be increased or accelerated by the occurrence of the transactions contemplated by this Agreement.
(n) written arrangements not disclosed on the TARGET Disclosure Schedule pursuant to any mortgagesother provision in this Section 3.13 under which the consequences of a default or termination could have a TARGET Material Adverse Effect; The contracts, indentures, loans, notes or credit agreements, security agreements commitments and other instruments listed or required to be listed on the TARGET Disclosure Schedule are herein referred to as the "Material Contracts." To TARGET's knowledge, all the Material Contracts are valid and binding upon TARGET or the applicable Subsidiary and upon the other agreements parties thereto and are in full force and effect and enforceable in accordance with their terms, except as enforceability may be affected by bankruptcy, insolvency, moratorium or instruments similar laws affecting creditors rights generally and general principles of equity relating to the borrowing availability of money equitable remedies. Neither TARGET nor any of its Subsidiaries is in violation of or extension in default under (nor does there exist any condition which upon the passage of credit time or creating the giving of notice would cause such a violation of or default under) any material Encumbrances with respect Material Contract to any assets of the Company which it is a party or by which it or any of its Subsidiaries properties or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each caseassets is bound, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Personviolations or defaults that could not, including any financial advisor, broker, finder, investment banker individually or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement reasonably be expected to result in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company TARGET Material Contracts, including all amendments theretoAdverse Effect. Except as set forth in Section 2.14(b) of on the Company TARGET Disclosure Schedule, there are no Company Material Contracts material contracts or commitments that are not in written form. As require the performance of the date services or provision of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to products by TARGET at a Company Material Contract, has breached, violated direct cost for each such contract or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would commitment reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as in excess of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject revenue to the Enforceability Exceptions. No Person is renegotiating, or has a right be derived pursuant to the terms of such contract or commitment. Except for terms specifically described on the TARGET Disclosure Schedule, neither TARGET nor any Company Material Contract Subsidiary has received any payment from any contracting party in connection with or as an inducement for entering into any contract, agreement, policy or instrument except for payment for actual services rendered or to change, any material amount paid be rendered by TARGET or payable to the Company or any of its Subsidiaries under any Company Material Contract consistent with amounts historically charged for such services. The TARGET Disclosure Schedule also sets forth the amount of client payments to TARGET or any other material term its Subsidiaries through the date hereof with respect to services not yet performed by TARGET or provision its Subsidiaries, which payments individually exceed $1,000,000. All such payments through the date of any Company Material Contractthe Latest Financial Statements are reflected in the Latest Financial Statements.
Appears in 1 contract
Sources: Merger Agreement (Thermatrix Inc)
Agreements, Contracts and Commitments. (a) Except as disclosed in the Buyer SEC Reports or as disclosed in Section 2.14(a4.11(a) of the Company Buyer Disclosure Schedule lists the following Company Contracts in effect Schedule, as of the date of this Agreement (other than Agreement, neither Buyer nor any Company Benefit Plans) (each, of its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):
party to any oral or written (i) each Contract that agreement, contract, indenture or other instrument relating to Indebtedness in an amount exceeding $1,000,000, (ii) partnership, joint venture or limited liability or management agreement with any person, (iii) agreement, contract, or other instrument relating to any merger, consolidation, business combination, share exchange, business acquisition, or for the purchase, acquisition, sale or disposition of any material assets of Buyer or any of its Subsidiaries outside the ordinary course of business, (iv) other contract, agreement or commitment to be performed after the date hereof which would be a material contract (as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange ActSEC);
, (iiv) each Contract agreement, contract, or other instrument relating to any Astrategic alliances" (i.e., cross-marketing, affinity relationship, etc.), (vi) contract, agreement or commitment which materially restricts (geographically or otherwise) the conduct of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Buyer or any of its Subsidiaries, in each case(vii) any contract, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker agreement or other Personinstrument having as a party a partnership, providing advisory services to the Company joint venture or limited liability company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company which Buyer or any of its Subsidiaries; or
Subsidiaries is a partner, joint venture party or member which would otherwise satisfy the criteria in clauses (xiiii), (iii), (iv), (v) or (vi) if Buyer or any of its Subsidiaries were a party to such contract, agreement or other instrument or (viii) any other Contract that material contract requiring annual or remaining payments in excess of $250,000 after the date hereof and which is not terminable at will cancelable on less than 30 days' notice (with no penalty or paymentcollectively, the "Buyer Material Contracts").
(b) by Except as disclosed in the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after Buyer SEC Reports filed prior to the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth disclosed in Section 2.14(b4.11(b) of the Company Buyer Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, (i) each Company of the Buyer Material Contract Contracts is validvalid and binding upon Buyer or any of its Subsidiaries (and, bindingto Buyer's best knowledge, enforceable on all other parties thereto) in accordance with its terms and is in full force and effect, subject to the Enforceability Exceptions. No Person (ii) there is renegotiating, no material breach or has a right pursuant to the terms violation of any Company Material Contract to change, any material amount paid or payable to the Company default by Buyer or any of its Subsidiaries under any Company of the Buyer Material Contract Contracts, whether or not such breach, violation or default has been waived, and (iii) no event has occurred with respect to Buyer or any of its Subsidiaries which, with the notice or lapse of time or both, would constitute a material breach, violation or default, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a lien, prepayment or acceleration under any of the Buyer Material Contracts, which breach, violation or default referred to in clauses (ii) or (iii), alone or in the aggregate with other material term such breaches, violations or provision of any Company defaults referred to in clauses (ii) or (iii), would be reasonably likely to have a Buyer Material ContractAdverse Effect.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 4.16 of the Company Tellurian Disclosure Schedule lists all Material Contracts of Tellurian. Except as set forth in Section 4.16 of the following Company Contracts in effect Tellurian Disclosure Schedule and as contemplated hereby, Tellurian is not a party to, as of the date hereof, (i) any collective bargaining agreements or any agreements that contain any severance pay liabilities or obligations, (ii) any Employee Benefit Plans, (iii) any employment agreement, contract or commitment with an employee, or agreements to pay severance, (iv) any agreements between or among Tellurian or one of this Agreement its Affiliates or with any Related Person of Tellurian (other than agreements solely between or among Tellurian and its wholly owned Subsidiaries), (v) any Company Benefit Plans) (eachagreement, a “Company Material Contract” indenture or other instrument for borrowed money and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement or other instrument which contains restrictions with respect to payment of indemnification distributions in respect of any outstanding Securities, (vi) any agreement, contract or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Tellurian to engage or compete in any line of business or compete with any PersonPerson or in any geographic area during any period of time, (Bvii) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract commitment relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
50,000, (vviii) each Contract any agreement, contract or commitment relating to the acquisition, disposition or acquisition voting of material assets or capital stock of any ownership interest in any Entity;
(vi) each Contract relating to any mortgagesbusiness enterprise, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or including Tellurian and any of its Subsidiaries, in each case(ix) any contract that requires Tellurian to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions, except (x) any contract that provides for Contracts entered into in the Ordinary Course indemnification by Tellurian of Business;
(viii) each Contract with any Person or the assumption of any Tax, environmental or other liability of any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and Company In-bound License;
advertising contract to which Tellurian is a party, (xii) each Contract containing except for contracts relating to trade receivables, any royaltycontract relating to indebtedness (including guarantees) of Tellurian, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract contract with any Governmental Authority to which Tellurian is a party, (xiv) any contract to which Tellurian is a party that is not terminable at provides for any joint venture, partnership or similar arrangement by Tellurian, (xv) any tax partnership agreement, (xvi) any agreement that constitutes a joint operating agreement, unit operating agreement, unitization or pooling agreement, participation agreement, exploration agreement, development agreement, partnership agreement, joint venture agreement or similar agreement, (xvii) any agreement that provides for an irrevocable power of attorney that will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries be in effect after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, Closing Date or (Bxviii) any agreement that is material to the business or operations constitutes a lease of the Company and its Subsidiaries, taken as a whole.
(b) The Company real property. Tellurian has delivered or made available to Parent Magellan accurate and complete copies of all Company written Material Contracts, including all amendments thereto. All references to Tellurian in this Section 4.16 shall be deemed to include the Tellurian Subsidiaries.
(b) Except as set forth in Section 2.14(b4.16(b) of the Company Tellurian Disclosure Schedule, there are no Company Material Contracts that are Tellurian has not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, materially breached any of the terms or conditions ofof any Material Contract. There is not, or Laws applicable toto the Knowledge of Tellurian, under any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, any default or event which, with notice or lapse of time or both, would permit constitute a default on the part of any other party to seek damages of the parties thereto, or pursue other legal remedies which would reasonably be expected to be any notice of termination, cancellation or material modification.
(c) Except to the Company or its business or operations. As to extent the Company and its Subsidiariesenforceability thereof may be limited by Creditor Rights, as each of the date Material Contracts (i) constitutes the valid and binding obligation of this AgreementTellurian and constitutes the valid and binding obligation of the other parties thereto, each Company Material Contract (ii) is valid, binding, enforceable and in full force and effecteffect and (iii) immediately after the consummation of the Merger, subject will continue to the Enforceability Exceptions. No Person is renegotiating, or has constitute a right pursuant to the terms valid and binding obligation of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractTellurian.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);Act);
(ii) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;Business;
(iii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase a minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;Subsidiaries;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;Entity;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;Subsidiaries;
(vii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 300,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has have continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has have continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;Business;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;Transactions;
(ix) each Company Real Estate Lease;Lease;
(x) each Company Contract with any Governmental Body;Body;
(xi) each Company Out-bound License and Company In-bound License;License;
(xii) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 300,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a material contract as defined relating to any retention, change in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the control or transaction bonus or severance or other termination obligation to any Company was subject to the public reporting requirements of the Exchange Act)Associate;
(ii) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to requiring payments by the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 150,000 pursuant to its express terms and not cancelable without penaltywith any Company Associate;
(viii) each Company Contract relating to any agreement or plan, including any Company Employee Plan, any of the disposition benefits of which will be increased, or acquisition the vesting or payment of material assets benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any ownership interest in other event, such as termination of employment), or the value of any Entityof the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(viiv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiv) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivi) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixvii) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiiviii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, applicable and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than the Company or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into the Company or any Ordinary Course of its SubsidiariesBusiness;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, 20 technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable at will by the Company without notice, severance or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any 21 Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Salarius Pharmaceuticals, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) Part 2.13 of the Company Disclosure Schedule lists identifies each Company Contract to which the following Company Contracts in effect as is a party and to which the Company has any currently effective binding obligations or by which any of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):its assets are currently bound:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between the Company and any of its officers or directors;
(iiib) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivc) each Contract relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 25,000 and not cancelable without penalty;
(vd) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vie) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $25,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viif) each Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement currently in force (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision currently in force for the conduct of services or products with respect to any research, pre-clinical or clinical studies regarding the products under development activities of by the Company or any of its Subsidiaries; (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop develop, market, or market supply any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; such Subsidiary or (Div) any Contract currently in force to license any third party to manufacture or produce any Company product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Company products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiig) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixh) each with any manufacturer, vendor, or other Person for the supply of materials or performance of services by such third party to Company Real Estate Leasein relation to the manufacture of the Company’s products or Company Product Candidates;
(xi) each Contract with that would reasonably be expected to have a material effect on the ability of the Company to perform any Governmental Bodyof its material obligations under this Agreement, or to consummate any of the Contemplated Transactions;
(xij) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $50,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregate, or (Bii) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.; or
(bk) is a Company IP Right Agreement. The Company has delivered or made available to Parent Arrow accurate and complete copies of all Contracts to which the Company or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (k) above (any such Contract, a “Company Material ContractsContract”), including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Except as set forth on Part 2.13 of the date of this AgreementCompany Disclosure Schedule, none of neither the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, under any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsdamages. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No To the Knowledge of the Company, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.13 of the Arrow Disclosure Schedule identifies each Arrow Contract to which Arrow is a party and to which Arrow has any currently effective binding obligations or by which any of its assets are currently bound:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Arrow and any of its officers or directors;
(iiib) each Contract containing (A) any covenant limiting the freedom of the Company, Arrow or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivc) each Contract relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 50,000 and not cancelable without penalty;
(vd) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vie) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with respect to any assets of the Company Arrow or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesArrow;
(viif) each Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement currently in force (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision currently in force for the conduct of services or products with respect to any research, pre-clinical or clinical studies regarding the products under development activities of the Company by Arrow or any of its Subsidiaries; (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Arrow or any of its Subsidiaries has continuing obligations to develop develop, market, or market supply any product, technology or service, or any agreement pursuant to which the Company Arrow or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Arrow or any of its Subsidiariessuch Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any Arrow product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Arrow products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business; in each case of (i) – (iv) above whereby such Contract is material to the business or operations of Arrow and its Subsidiaries as currently conducted and involves payment or receipt by Arrow or its Subsidiaries under such Contract of $50,000 or more in the aggregate or obligations after the date of this Agreement in excess of $50,000 in the aggregate;
(viiig) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Arrow in connection with the Contemplated Transactions;
(ixh) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License manufacturer, vendor, or other Person for the supply of materials or performance of services by such third party to Arrow in relation to the manufacture of Arrow’s products, whereby such Contract is material to the business or operations of Arrow and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, Subsidiaries as applicable, currently conducted and (A) which involves payment or receipt by the Company Arrow or its Subsidiaries after the date under such Contract of this Agreement under any such agreement, contract $50,000 or commitment of more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregate, ; or
(i) is a Contract pertaining to the Intellectual Property of Arrow or (B) that its Subsidiaries whereby such Contract is material to the business or operations of the Company Arrow and its Subsidiaries, taken Subsidiaries as a whole.
(b) The Company currently conducted and involves payment or receipt by Arrow or its Subsidiaries under such Contract of $50,000 or more in the aggregate or obligations after the date of this Agreement in excess of $50,000 in the aggregate. Arrow has delivered or made available to Parent the Company accurate and complete copies of all Company Contracts to which Arrow or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (i) above (any such Contract, an “Arrow Material ContractsContract”), including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Arrow Material Contracts that are not in written form. As Except as set forth on Part 3.13 of the Arrow Disclosure Schedule, neither Arrow nor any of its Subsidiaries has, nor to Arrow’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company an Arrow Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, under any of the terms or conditions of, or Laws applicable to, any Company Arrow Material Contract in such manner as would permit any other party to cancel or terminate any such Company Arrow Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsdamages. As to the Company Arrow and its Subsidiaries, as of the date of this Agreement, each Company Arrow Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No To the Knowledge of Arrow, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries Arrow under any Company Arrow Material Contract or any other material term or provision of any Company Arrow Material ContractContract other than in the Ordinary Course of Business.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 750,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, or employment agreement, or independent contractor agreement with any employee or service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable at will by the Company without notice, severance or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 750,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 750,000 in the aggregate, or (B) that is material to the business or operations of the Company and its SubsidiariesCompany, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) Part 2.9 of the Company Disclosure Schedule lists the following identifies, except for Company Contracts set forth in effect as Part 2.13 of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):Disclosure Schedule:
(ia) each Company Contract that would be a material contract as defined in Item 601(b)(10) relating to the retention of, or the performance of Regulation S-K as promulgated under the Securities Act (assuming services by, any individual consultant or individual independent contractor, not terminable by the Company was subject to the public reporting requirements of the Exchange Act)or its Subsidiaries on 90 or fewer days’ notice without liability;
(iib) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between the Company, its Subsidiaries or any of its or their officers or directors;
(iiic) each Company Contract containing (Ai) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, Person or (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (Cii) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to binding on the Company or any of its Subsidiariesapplicable Subsidiary;
(ivd) each Company Contract relating to capital expenditures and requiring payments involving obligations by the Company or its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(ve) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $150,000 or creating any material Encumbrances with respect to any assets of the Company or any Subsidiary of its Subsidiaries the Company or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viig) each Company Contract requiring involving payment or receipt by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant 150,000 in the aggregate relating to its express terms relating to: (Ai) any distribution agreement or (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company;
(h) each Company or any of its Subsidiaries; Contract involving (Ci) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaborationpartnership, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any such Subsidiary of its Subsidiaries; the Company or (Dii) any Contract to license any third party to manufacture or produce any Company product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute sell or commercialize any Company products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into agreements with sales representatives in the Ordinary Course of Business;
(viiii) each Company Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixj) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of under which the Company or any of its SubsidiariesSubsidiaries is a licensee of or is otherwise granted by a third party any rights to use any Company Third Party Intellectual Property (other than (i) non-exclusive licenses of commercially available software with an annual license fee of less than $25,000 for each such agreement and (ii) agreements in which grants of rights to Intellectual Property are incidental and not material to such agreements);
(k) each Company Contract under which the Company or any of its Subsidiaries is a licensor or otherwise grants to a third party any rights to use any Company Intellectual Property (other than agreements in which grants of rights to Intellectual Property are incidental and not material to such agreements); or
(xiiil) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract of $250,000 or commitment of more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, aggregate or (Bii) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) . The Company has delivered or made available to Parent Castle accurate and complete (except for applicable redactions thereto) copies of all Company Material ContractsContracts (as defined below), including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Neither the Company nor any Subsidiary of the date of this AgreementCompany has, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, of any of the Contracts to which the Company or Laws applicable to, its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (l) above or any Company Contract listed in Part 2.13 of the Company Disclosure Schedule (any such Contract, a “Company Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages damages, in each case which has had or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the Enforceability Exceptionsrelief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. No Person is renegotiating, The Company has not received any written notice of termination or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries cancellation under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Cempra, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.12(a) of the Company Disclosure Schedule lists identifies the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Agreement: (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(x) each Company IP Rights Agreement required to be listed in Section 2.11(c) or Section 2.11(d) of the Company Disclosure Schedule;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract relating to any retention, change in control or transaction bonus or severance or other termination obligation to any Company Associate;
(xiii) each Company Contract relating to any agreement or plan, including any Benefit Plans, any benefits of which will be increased, or the vesting or payment of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(xiv) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $100,000 pursuant to its Subsidiariesexpress terms with any Company Associate, other than any such Company Contract that is terminable “at will” or upon not less than 60 days’ notice without any obligation on the part of the Company to make any severance, termination, change in control or similar payment or to provide any benefit; or
(xiiixv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of more than $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.12(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party Person to cancel or terminate any such Company Material Contract, or would permit any other party Person to seek damages or pursue other legal remedies which would reasonably be expected to be material to the result in a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract Contract, to change, terminate or change any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivd) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viig) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiih) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixi) each Company Parent Real Estate Lease;
(xj) each Contract with any Governmental Body;
(xik) each Company Parent Out-bound License and Company Parent In-bound License;
(xiil) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiiim) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Parent. Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, of or Laws applicable to, to any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Tocagen Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(aSchedule 4.20(a) of the Company Disclosure Schedule lists the following Letter sets forth a true, correct and complete list of each Company Contracts Material Contract (as defined below) that is in effect as of the date of this Agreement (other than any Company Benefit Plans) (eachAgreement. For purposes of this Agreement, a “Company Material Contract” and collectively, of the “Company Material Contracts”):Group Companies shall mean:
(i) each any Contract that would be a material contract as defined or purchase commitment reasonably expected to result in Item 601(b)(10) future payments to or by any Group Company in excess of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)$500,000 per annum, excluding Franchise Agreements;
(ii) any currently effective Franchise Agreement with any Franchisee that owns 10 or more Franchises;
(iii) any Contract between a Group Company and one of the top 10 suppliers of the Group Companies’ operations (the “Material Suppliers”) as determined by dollar volume of payments and considering the Group Companies as a whole during the 12-month period prior to the date of this Agreement;
(iv) any Contract providing for a material promotional arrangement or a material arrangement with any influencer;
(v) any material Contract with any college or other academic institution;
(vi) any material Government Contract;
(vii) any Contract (other than any Franchise Agreement) that purports to limit (A) the localities in which the Group Companies’ businesses are conducted, (B) any Group Company from engaging in any line of business or (C) any Group Company from developing, marketing or selling products or services, in each case, in any manner that is material to the Group Companies, taken as a whole, including any non-compete agreements or agreements limiting the ability of any of the Group Companies to solicit customers or employees, in a manner that is material to the Group Companies, taken as a whole;
(viii) any Contract that imposes obligations on any of the Group Companies to provide “most favored nation” pricing to any of its customers, or that contains any “take or pay” or minimum requirements with any of its suppliers, right of first refusal or other similar provisions with respect to any transaction engaged in by any of the Group Companies;
(ix) any Contract that is related to the governance or operation of any joint venture, partnership or similar arrangement, other than such contract solely between or among any of the Group Companies;
(x) any Contract for or relating to any agreement borrowing of indemnification money by or guaranty from the Company, including the Existing Credit Agreement;
(xi) any employment, consulting (with respect to an individual, independent contractor) or management Contract providing for annual payments in excess of $200,000, excluding any such employment, consulting, or management Contract that either: (A) is terminable by the Company at will; or (B) provides for notice and/or garden leave obligations as required by Applicable Legal Requirements, in each case, so long as such Contract does not provide for: (1) severance or similar obligations; (2) transaction bonuses or change in control payments; or (3) tax gross-ups;
(xii) any Contract (other than any Franchise Agreement): (A) providing for the grant of any preferential rights to purchase or lease any asset of the Company; or (B) providing for any right (exclusive or non-exclusive) to sell or distribute any material product or service of any of the Group Companies (in the case of clauses (A) and (B), other than Contracts for the purchase or sale of inventory, fitness studio equipment or supplies entered into in the Ordinary Course of Business);
(iiixiii) each any Contract containing that includes an obligation to register any Company Common Stock or other securities of any Group Company with any Governmental Entity (other than requirements of foreign Applicable Legal Requirements in the Ordinary Course of Business related to the recording with an applicable Governmental Entity of the ownership of non-U.S. Group Companies);
(xiv) any Contracts for: (A) the sale of any covenant limiting the freedom of the Companybusiness, its Subsidiaries properties or the Surviving Corporation to engage assets of any Group Company in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement an amount in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
50,000; or (vB) each Contract relating to the disposition acquisition by any Group Company of any operating business, properties or acquisition assets, whether by merger, purchase or sale of material stock or assets or any ownership interest otherwise (in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing case of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: clauses (A) any distribution agreement (identifying any that contain exclusivity provisions); and (B) any agreement involving provision ), other than Contracts for the purchase or sale of services inventory, fitness studio equipment or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts supplies entered into in the Ordinary Course of Business);
(viiixv) each any Contract that includes an obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;
(xvi) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any Personlabor union, labor organization, or works council;
(xvii) any Contract for the use by any of the Group Companies of any tangible property where the annual lease payments are greater than $100,000 (other than any lease of vehicles, office equipment or operating equipment made in the Ordinary Course of Business); and
(xviii) any Contract under which any of the Group Companies: (A) licenses Intellectual Property from any third party (other than licenses for Software entered into in the Ordinary Course of Business that are (x) subject to a total license fee of less than $300,000 per year or $600,000 in the aggregate and (y) in the nature of “shrink-wrap” or “click-wrap” license agreements for off-the-shelf Software that has not been materially modified with respect to Intellectual Property (“Inbound License”)); (B) licenses Intellectual Property to any third party (excluding any Franchise Agreement); (C) is developing or has developed any material Intellectual Property, itself or through a third party; (D) has acquired from or transferred to any third party any material patents or other material Intellectual Property; or (E) otherwise permits or agrees to permit any other Person to use, obtain, enforce or register any material Owned Intellectual Property, including any financial advisor, broker, finder, investment banker coexistence agreements or other Person, providing advisory services covenants not to the Company in connection with the Contemplated Transactions;
▇▇▇ (ix) each Company Real Estate Lease;
(x) each Contract with excluding any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeFranchise Agreement).
(b) The Each Company has delivered Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable Group Company party thereto and, to the Knowledge of the Company, represents a legal, valid and binding obligation of the counterparties thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or made available to Parent accurate similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies. True, correct and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(bContracts have been made available to Parent.
(c) of Neither the Company Disclosure Schedulenor, there are no Company Material Contracts that are not in written form. As of to the date of this Agreement, none Knowledge of the Company, any other party thereto is in breach of its Subsidiariesor in default under, nor, to the Company’s Knowledgeand no event has occurred which with notice or lapse of time or both would become a breach of or default under, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, and no party to any Company Material Contract in such manner as would permit has given any other party to cancel or terminate written notice of any claim of any such Company Material Contractbreach, default or would permit any other party to seek damages event, which, individually or pursue other legal remedies which would in the aggregate, are reasonably be expected likely to be material to the Company or its business or operationsGroup Companies, taken as a whole. As to To the Company and its Subsidiaries, as Knowledge of the date Company, (i) there is no basis for any claim by any Franchisee for rescission of this any Franchise Agreement, each Company Material Contract (ii) no Franchisee is valid, binding, enforceable entitled to any set-off or reduction in any payment required under any Franchise Agreement and in full force and effect, subject to (iii) the Enforceability Exceptions. No Person is renegotiating, Transactions will not require the approval or has a right pursuant to the terms consent of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractFranchisee.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a2.20(a) of the Company Twin Vee Inc. Disclosure Schedule lists the following Company Contracts in effect as Letter, neither Twin Vee Inc. nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Twin Vee Inc.’s Board of Directors, other than those that would be a material contract as defined in Item 601(b)(10are terminable by Twin Vee Inc. or any of its subsidiaries on no more than thirty (30) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Twin Vee Inc.;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale, license, distribution, reselling or other transfer of Businesssoftware products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Twin Vee Inc. or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business presently conducted by Twin Vee Inc. or any subsidiary, or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Twin Vee Inc. or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets which Twin Vee Inc. or any of its subsidiaries has any material ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Twin Vee Inc.’s subsidiaries;
(vi) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Twin Vee Inc. or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which Twin Vee Inc. or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Twin Vee Inc. or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Twin Vee Inc. and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Twin Vee Inc. Product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Twin Vee Inc. Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less;
(ix) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each Contract with any Governmental Body;material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such material agreement, contract or commitment currently in force that is outside the ordinary course of more than $200,000 in the aggregate, business or obligations after the date of this Agreement in excess that has a value of $500,000 50,000 or more within a twelve (12) month period in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeany individual case.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Twin Vee Inc. nor any of its Subsidiariessubsidiaries, nor, nor to the Companyit’s Knowledge, knowledge any other party to a Company Material ContractTwin Vee Inc. Contract (as defined below), has breachedis in material breach, violated violation or defaulted default under, or and neither Twin Vee Inc. nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Twin Vee Inc. or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Twin Vee Inc. Disclosure Letter (any such agreement, any Company Material Contract contract or commitment, a “Twin Vee Inc. Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Twin Vee Inc. Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
): (i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
; (ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
; (iii) each Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or other preferred pricing arrangements in favor of a Person other than Parent or its Subsidiaries or any similar term by which any Person is or could become entitled to any benefit, right or privilege that must be at least as favorable to such Person as those offered to any other Person, (C) marketing or distribution rights related to any products or territory, (CD) any exclusivity provision, (DE) any agreement to purchase minimum quantity of goods or services, (F) granting to any Person a right of first refusal, a right of first negotiation or a right of first offer, in each case, to purchase, acquire, sell, exclusively license or dispose of any material assets or properties of Parent or any of the Parent Subsidiaries or granting to any Person an option to purchase, acquire, sell, exclusively license or dispose of any assets or properties that are material to Parent and the Parent Subsidiaries, taken as a whole, or (EG) any material non-non- solicitation provisions applicable to the Company Parent or any of its Subsidiaries;
; (iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without material penalty;
; (v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
, except as contemplated hereby; (vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any material assets of the Company Parent or any of its Subsidiaries (other than licenses to Intellectual Property Rights under Contracts set forth in Section 3.13(a)(xi) of the Parent Disclosure Schedule) or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
; (vii) each Contract Contract, except for Contracts not requiring a payment in excess of $50,000 pursuant to its express terms by or to the Company Parent or any of its Subsidiaries after the date of this Agreement Closing Date that are not cancellable without a penalty in excess of $200,000 pursuant to its express terms relating to50,000: (A) any that is a dealer or distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, that is a joint -36- marketing, alliance, joint venture, cooperation, collaboration, collaboration or development or other agreement currently in force agreement; (D) under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that are not or will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (DE) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products product or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
; (viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
; (ix) each Company Parent Real Estate Lease;
; (x) each Contract with any Governmental Body;
; (xi) each Company Parent Out-bound License (other than clinical trial agreements, materials transfer agreements, non-disclosure agreements and Company non-exclusive outbound licenses granted to service providers limited to such service providers performance of services for Parent or any of its Subsidiaries, non-disclosure agreements, in each case entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of the Parent or any of its Subsidiaries) and Parent In-bound License;
License (other than clinical trial agreements, materials transfer agreements, services agreements, non-disclosure agreements, commercially available Software-as- a-Service offerings, off-the-shelf software licenses and generally available patent license agreements, in each case entered into in the Ordinary Course of Business on a non-exclusive basis); (xii) each Contract under which any third party develops any material Intellectual Property Rights for Parent or any of its Subsidiaries, other than individual consulting agreements that are substantially on Parent’s form of consulting agreement made available to the Company; (xiii) each Contract containing any royalty, “earn-out,” dividend or similar arrangement contingent payment arrangement, including (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (y) payment of royalties or other amounts calculated based on the revenues revenues, income or profits of the Company Parent or any of its Subsidiaries; or
or (xiiixiv) any other Contract that is not terminable at will (with no without penalty or paymentpayment in excess of $50,000) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment non- cancellable obligations on the part of, or receipt by the Company payments by, Parent or any of its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregateaggregate after the date hereof, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
. (b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b3.13(b) of the Company Parent Disclosure Schedule, there are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which which, in each case, would reasonably be expected to be material and adverse to the Company Parent, its Subsidiaries or its their respective business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.,
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than the Company or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company, or (D) any agreement to purchase minimum quantity non- solicitation provision not entered into in the Ordinary Course of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesBusiness;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider that (A) is not immediately terminable at will by the Company without notice, severance or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract with a professional employer organization or staffing agency;
(xiv) each Company Contract that is a collective bargaining agreement or similar agreement with any labor union or similar labor organization;
(xv) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xvi) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xvii) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of Neither the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and, to the Knowledge of the Company, no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of the Company or any of to conduct its Subsidiariesbusiness;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $250,000, other than Company Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any Company, in each case, having an outstanding principal in an amount in excess of its Subsidiaries$250,000.;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental BodyBody (other than clinical trial agreements for clinical trial studies);
(xix) each Company Out-bound License and Company In-bound License;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries;
(xii) each Company Contract, offer letter, employment agreement, or independent contractor agreement with any employee, consultant or independent contractor that (A) is not terminable by the Company without less than 60 days notice, severance, or other cost or liability, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event); or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (GTX Inc /De/)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (and, except with respect to clauses (m) and (n) below, other than any Company Parent Benefit Plans) (each, a “Company "Parent Material Contract” " and collectively, the “Company "Parent Material Contracts”"):
(ia) each Parent Contract that would be is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Parent Contract relating to any agreement the primary purpose of which is indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to another Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the Company ability of Parent or any of its SubsidiariesSubsidiaries to conduct their respective businesses;
(ivd) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $25,000, other than Parent Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(vif) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries, in each case, having an outstanding principal in an amount in excess of $25,000;
(viig) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license or engage any third party to manufacture or produce any productproduct or drug substance, service or technology of the Company Parent, any Contract for raw materials or warehousing of products or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viiih) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company Parent or its Subsidiaries in connection with the Contemplated Transactions;
(ixi) each Company Parent Real Estate Lease;
(xj) each Parent Contract with any Governmental BodyBody (other than clinical trial agreements for clinical trial studies);
(xik) each Company Parent Out-bound License and Company Parent In-bound License;
(xiil) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or its Subsidiaries or obligation to pay any royalties, fees or other payments to any owner, licensor, or other claimant to any Intellectual Property Rights, in each case, in excess of $25,000;
(m) each offer letter, employment agreement, or independent contractor agreement with any employee, consultant or independent contractor currently providing services to Parent or its Subsidiaries that (A) is not terminable by Parent or a Subsidiary of Parent without sixty (60) days' or more notice, severance, or other cost or liability, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any payment or benefit that may or will become due as a result of its Subsidiariesthe Merger (whether alone or in connection with any other event);
(n) each Parent Contract that is a collective bargaining agreement or is with a professional employer agency, temporary employment agency or labor contractor; or
(xiiio) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 25,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Parent. Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has nor, to Parent's Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business Subsidiaries or operationstheir respective businesses. As to the Company and Parent or its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Pivot Disclosure Schedule identifies:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Pivot Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject relating to the public reporting requirements employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Pivot on ninety (90) days notice without liability, except to the Exchange Act)extent general principles of wrongful termination law may limit Pivot’s ability to terminate employees at will;
(iib) each Pivot Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(c) each Pivot Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Pivot and any of its officers or directors;
(iiid) each Pivot Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Pivot or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ive) each Pivot Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(vf) each Pivot Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vig) each Pivot Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Pivot or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesPivot;
(viih) each Pivot Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Pivot (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Pivot has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Pivot has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesPivot; or (Div) any Contract currently in force to license any third party to manufacture or produce any Pivot product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Pivot products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiii) each Pivot Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Pivot in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiij) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement Pivot under any such agreement, contract or commitment of $100,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (Bii) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Pivot. Pivot has delivered or made available to Parent Merger Partner accurate and complete (except for applicable redactions thereto) copies of all Company Material material written Merger Partner Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material material Pivot Contracts that are not in written form. As Except as set forth on Part 3.7 of the Pivot Disclosure Schedule, Pivot has not, nor to Pivot’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Pivot Material ContractContract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Pivot is a party or by which it is bound of the type described in clauses (a) through (f) above (any such agreement, any Company contract or commitment, a “Pivot Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Pivot Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Pivot Material Adverse Effect. As to the Company and its Subsidiaries, as The consummation of the date Contemplated Transactions shall not (either alone or upon the occurrence of this Agreement, each Company Material Contract is valid, binding, enforceable and additional acts or events) result in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid payment or payable payments becoming due from Pivot or the Surviving Corporation to the Company or any of its Subsidiaries Person under any Company Material Contract or any other material term or provision of any Company Material Pivot Contract.
Appears in 1 contract
Sources: Merger Agreement (Novacea Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit Plans) Plans or Parent Excepted Contracts (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting in any material respect the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than Parent or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, option to receive a license, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than Parent, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into in the Company or any Ordinary Course of its SubsidiariesBusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider that is not immediately terminable at will by the Parent without notice, severance or other cost or payment;
(xiv) each Parent Contract that provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger or the Change of Control Effective Time;
(xv) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xvi) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute;
(xvii) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License; and
(xviii) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiatinghas provided written notice to Parent to renegotiate, exercise a right or renegotiation, or has a right pursuant to the terms of any Company Material Contract to otherwise change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract or not renew, cancel or terminate any such Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.14 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesParent;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeParent.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, neither Parent nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit Plans) Plans or Parent Excepted Contracts (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting in any material respect the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than Parent or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, option to receive a license, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than Parent, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into in the Company or any Ordinary Course of its SubsidiariesBusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider that is not immediately terminable at will by the Parent without notice, severance or other cost or payment;
(xiv) each Parent Contract that provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger;
(xv) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 500,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xvi) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xvii) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.11 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each a Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each a Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivd) each a Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(ve) each a Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each a Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viig) each a Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiih) each a Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixi) each Company a Contract with a labor union, labor organization, or similar Person;
(j) a Parent Real Estate Lease;
(xk) each a Contract with any Governmental Body;
(xil) each Company Out-bound License and Company In-bound Licensea Parent IP Agreement or other Contract required to be disclosed on Section 3.10 of the Parent Disclosure Schedule;
(xiim) each a Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiiin) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Parent. Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received written notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a4.13(a) of the Company Aspen Disclosure Schedule lists identifies each of the following Company types of Aspen Contracts that is in effect as of the date of this Agreement (Agreement, other than any Company Benefit Aspen Employee Plans) , the definitive agreements in respect of the Contemplated Transactions and Contracts filed as exhibits to the Aspen SEC Documents (each, a an “Company Aspen Material Contract” and collectively, the “Company Aspen Material Contracts”):
(i) each Contract that would be is a “material contract contract” (as such term is defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract that relates to any material bonus, deferred compensation, or severance plans or arrangements;
(iii) evidencing a commitment by Aspen or any of its Subsidiaries to make a future capital expenditure in excess of $250,000 that is not terminable by such Entity upon notice of sixty (60) days or less without penalty or liability;
(iv) that requires payments by Aspen or any of its Subsidiaries after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any agreement Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by Aspen or any of its Subsidiaries on thirty (30) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination Law may limit Aspen’s, or such successor’s ability to terminate employees at will;
(v) (A) that includes (1) any “most favored nations” terms or conditions, including with respect to pricing, (2) containing exclusivity obligations or otherwise limiting the freedom or right of Aspen or any of its Subsidiaries to sell, distribute or manufacture any products or services for another person, or (3) any rights of first refusal, rights of first negotiation or similar obligations or restrictions, including such rights which provide a right of first negotiation or refusal to purchase, lease, sublease, license, sublicense, use, possess or occupy any securities, assets (including Intellectual Property) or other interest of Aspen or any of its Subsidiaries or (B) containing any provision or covenant that materially limits, or purports to materially limit, the ability of Aspen or any of its Subsidiaries to engage in any line of business (whether generally or in any geographic area) or compete with any Person or in any line of business or geographic area;
(vi) relating to or evidencing indebtedness for borrowed money or any guarantee of indebtedness for borrowed money by Aspen or any of its Subsidiaries in excess of $250,000 (excluding loans by Aspen to wholly-owned Subsidiaries in the Ordinary Course of Business);
(vii) providing for or governing the formation of any joint venture, partnership, strategic alliance, research and development collaboration, or similar arrangement;
(viii) providing for uncapped indemnification or guaranty not to a third party, in each case except (A) as entered into in the Ordinary Course of Business and (B) for any Aspen Outbound License;
(ix) (A) pursuant to which any Person granted Aspen an exclusive license under any Intellectual Property, or (B) pursuant to which Aspen or any of its Subsidiaries granted any Person an exclusive license under any Aspen Intellectual Property (“Aspen License Agreements”);
(x) that has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of development, regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon sales, revenue, income or similar measure of Aspen or any of its Subsidiaries;
(xi) that is a settlement, conciliation or similar Contract with or approved by any Governmental Authority (A) pursuant to which Aspen or any of its Subsidiaries will be required after the date of this Agreement to pay any monetary obligations or (B) that contains material obligations or limitations on the conduct of Aspen or any of its Subsidiaries (other than customary confidentiality obligations);
(xii) with any Governmental Authority, except for materials transfer agreements, agreements with academic institutions and non-disclosure agreements entered into in the Ordinary Course of Business;
(iiixiii) each Contract containing that is a clinical trial agreement, clinical study agreement or similar agreement;
(xiv) (A) that is a collective bargaining agreement or (B) with any covenant limiting labor organization;
(xv) that prohibits the freedom payment of dividends or distributions in respect of the Companycapital stock of Aspen or any of its Subsidiaries, the pledging of the capital stock or other equity interests of Aspen or any of its Subsidiaries or the Surviving Corporation to engage in issuance of any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company guaranty by Aspen or any of its Subsidiaries;
(ivxvi) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vixvii) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company Aspen or any of its Subsidiaries after the date of this Agreement in excess of $200,000 150,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Aspen or any of its Subsidiaries; , (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Aspen or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Aspen or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; Aspen or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company Aspen or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Aspen or any of its Subsidiaries, in each case, except for Aspen Contracts entered into in the Ordinary Course of Business;
(viiixviii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Aspen or any of its Subsidiaries in connection with the Contemplated Transactions;; or
(ixxix) each Company Real Estate Lease;
that was entered into since January 1, 2021 and (xA) each Contract was entered into with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royaltypresent or former officer, dividend director or similar arrangement based on the revenues or profits employee of the Company Aspen or any of its Subsidiaries; or
Subsidiaries (xiii) other than indemnification agreements or any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 Employee Plans entered into in the aggregate, or obligations after the date ordinary course of this Agreement in excess of $500,000 in the aggregate, business) or (B) is the type of Contract that is material would be required to the business or operations be disclosed under Item 404 of Regulation S-K of the Company and its Subsidiaries, taken as a wholeExchange Act.
(b) The Company Aspen has delivered or made available to Parent the Company accurate and complete copies of all Company Aspen Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Aspen Material Contracts that are not in written form. As Aspen has not nor, to Aspen’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company an Aspen Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Aspen Material Contract in such manner as would permit any other party to cancel or terminate any such Company Aspen Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave an Aspen Material Adverse Effect. As to the Company Aspen and its Subsidiaries, as of the date of this Agreement, each Company Aspen Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Aspen Material Contract to change, change any material amount paid or payable to the Company or any of its Subsidiaries Aspen under any Company Aspen Material Contract or any other material term or provision of any Company Aspen Material Contract.
Appears in 1 contract
Sources: Merger Agreement (AVROBIO, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company The K*TEC Disclosure Schedule lists the following Company Contracts contains a complete and accurate list of all leases, contracts and arrangements described below in effect as of the date of this Agreement clauses (other than any Company Benefit Plansi) through (each, xi) below to which K*TEC is a “Company Material Contract” and collectively, the “Company party or relating primarily to K*TEC's business ("K*TEC Material Contracts”):") ------------------------
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements or arrangement with any of the Exchange Act)customers of K*TEC listed on the K*TEC Disclosure Schedule involving performance of services or delivery of goods or materials to K*TEC of an amount or value in excess of $100,000, other than purchase orders received by K*TEC in the ordinary course of business requiring K*TEC to perform services or deliver goods;
(ii) each Contract relating contract or arrangement with any of the suppliers to any agreement K*TEC listed on the K*TEC Disclosure Schedule involving performance of indemnification services or guaranty not delivery of goods or materials to K*TEC of an amount or value in excess of $100,000, other than purchase orders entered into by K*TEC in the Ordinary Course ordinary course of Businessbusiness for the purchase of services or goods by K*TEC;
(iii) each Contract containing (A) any covenant limiting the freedom note, debenture, other evidence of the Companyindebtedness, its Subsidiaries guarantee, loan, letter of credit, surety bond or the Surviving Corporation to engage in any line of business financing agreement or compete with any Personinstrument or other contract for money borrowed, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) including any agreement to purchase minimum quantity of goods or servicescommitment for future loans, credit or (E) any material non-solicitation provisions applicable to the Company financing entered into by K*TEC or by which K*TEC or any of its Subsidiariesproperties or assets are bound;
(iv) each Contract relating to capital expenditures lease, rental or occupancy agreement, license, installment and requiring conditional sales agreement, and other contract or arrangement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property and involving aggregate payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty100,000;
(v) each Contract relating licensing agreement or other agreement with respect to patents, trademarks, copyrights, or other intellectual property and involving aggregate payments in excess of $100,000, and each agreement with current or former employees, consultants, or contractors regarding the disposition appropriation or acquisition the nondisclosure of material assets or any ownership interest in any EntityIntellectual Property;
(vi) each Contract collective bargaining agreement or other agreement to or with any labor union or other employee representative of a group of employees relating to any mortgageswages, indentures, loans, notes or credit agreements, security agreements or hours and other agreements or instruments relating to the borrowing conditions of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariesemployment;
(vii) each Contract requiring payment by joint venture agreement, partnership agreement, or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution limited liability company agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company (however named) involving a sharing of profits, losses, costs or liabilities by K*TEC with any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessother Person;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to agreement that commits capital expenditures after the Company date hereof in connection with the Contemplated Transactionsan amount in excess of $100,000;
(ix) each Company Real Estate Leasepower of attorney which is currently effective and outstanding;
(x) each Contract with agreement between K*TEC and any Governmental Body;of its Affiliates or Subsidiaries; and
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royaltywritten warranty, dividend guaranty or other similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any undertaking with respect to contractual performance extended by K*TEC other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date ordinary course of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholebusiness.
(b) The Company has True and correct copies of each written K*TEC Material Contract have been delivered or made available to Parent accurate EFTC.
(c) Except as set forth on the K*TEC Disclosure Schedule, each of the K*TEC Material Contracts listed on the K*TEC Disclosure Schedule: (i) is in full force and complete copies effect, and (ii) represents the legally valid and binding obligation of all Company Material ContractsK*TEC and, including all amendments to the knowledge of K*TEC, the other parties thereto, and is enforceable against K*TEC and such parties in accordance with its terms. Except as set forth on the K*TEC Disclosure Schedule, K*TEC is not in Section 2.14(bmaterial breach of any K*TEC Material Contract and to K*TEC's knowledge no condition exists or event has occurred which, with notice or lapse of time or both, would constitute a material default or a basis for force majeure or the claim of excusable delay or nonperformance under such K*TEC Material Contracts, except for conditions that would not, individually or in the aggregate, have a K*TEC Material Adverse Effect.
(d) of Except as set forth on the Company K*TEC Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreementrenegotiations of, none of the Company, any of its Subsidiaries, noror, to the Company’s KnowledgeK*TEC's knowledge, any other party attempts to a Company Material Contract, has breached, violated or defaulted underrenegotiate, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party outstanding rights to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to changerenegotiate, any material amount amounts paid or payable to K*TEC under current or completed K*TEC Material Contracts, with any Person or entity having the Company contractual or statutory right to demand or require such renegotiation. K*TEC has not received any of its Subsidiaries under any Company Material Contract or any other material term or provision written demand for such negotiation in respect of any Company Material such K*TEC Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Thayer Blum Funding LLC)