Agreements, Contracts and Commitments. (a) Section 4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Lease: (i) each Contract that involved the expenditure or receipt by the Group Companies of more than $10,000,000 in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021; (ii) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees; (iii) 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; (iv) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies); (v) any employment or management Contract providing for annual payments in excess of $1,500,000; (vi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person; (vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business); (viii) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council; (ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and (x) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons. (b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company 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 (subject in each case to the Enforcement Exceptions), (ii) neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 2 contracts
Sources: Merger Agreement (Pagaya Technologies Ltd.), Merger Agreement (EJF Acquisition Corp.)
Agreements, Contracts and Commitments. (a) Section 4.19(a) Schedule 4.20 of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a any of the Group Company Companies is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leaseparty:
(i) Each Contract continuing over a period of more than twelve (12) months from the date thereof and not terminable by the Company upon sixty (60) days’ or less notice without liability or penalty (other than (A) agreements for the provision of Company’s products or services and (B) purchase orders with suppliers or customers, in each Contract case (A) and (B), entered into in the ordinary course of business) that involved the expenditure Company reasonably anticipates will involve annual payments or receipt consideration furnished by or to any of the Group Companies of more than $10,000,000 in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 20212,500,000;
(ii) Each note, debenture, other evidence of indebtedness, guarantee, loan, credit or financing agreement or instrument or other contract for money borrowed by any of the Group Companies from a third party, in each case, having an outstanding principal amount in excess of $2,500,000, but excluding guarantees of performance under Government Contracts entered into in the ordinary course of business;
(iii) Each Contract that purports to limit in for the acquisition of any Person or any business division thereof or the disposition of any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability assets of any of the Group Companies from soliciting customers or employees;
(iii) 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 in the ordinary course of the Group Companies;
(iv) any Contract for or relating to any borrowing of money by or from the Company business), in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(v) any employment or management Contract providing for annual payments in excess of $1,500,000;
(vi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating businesscase, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations otherwise (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business)) occurring in the last five years and/or relating to the pending or future acquisitions or dispositions;
(viiiiv) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and
(x) any Each obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;
(v) Each collective bargaining agreement with any labor union;
(vi) Each employment or consulting (with respect to an individual independent contractor) Contract providing for annual base salary or annual commitment consulting fee payments in excess of $350,000, excluding any such employment, consulting, or management Contract that either: (A) is terminable by the Company or the applicable Company Subsidiary at will; or (B) provides for severance, notice and/or garden leave obligations of 90 days or less or such longer period as is required by Applicable Legal Requirements;
(vii) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property; and (B) involves annual payments in excess of $2,500,000;
(viii) Each joint venture Contract, partnership agreement or limited liability company agreement with a third party (in each case, other than with respect to wholly owned Company Subsidiaries);
(ix) Each Contract, other than teaming agreements entered into in connection with the pursuit of a specific Government Contract or subcontract thereto or customary non-disclosure agreements, that purports to limit or contains covenants expressly limiting in any material respect the freedom of any of the Group Companies to: (A) compete with any Person in a product line or line of business, (B) otherwise develop, market, sell, distribute or otherwise exploit any service or products; or (C) operate in any geographic area;
(x) Each Contract (other than those made in the ordinary course of business): (A) providing for the grant of any preferential rights to purchase or lease any material asset (other than any services or products) of the Group Companies; 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;
(xi) Each Contract pursuant to which any of the Group Companies licenses material Intellectual Property from a third party, other than click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are available on standard terms to the public generally with license, maintenance, support and other fees less than $50,000 per year;
(xii) Each Contract containing an assignment or license to any third party of any material Owned Intellectual Property, or any covenant not to assert or enforce, any material Owned Intellectual Property against any third party, in each case, except non-exclusive licenses or covenants not to assert or enforce any such Intellectual Property granted by any Group Company to any third parties (including customers, suppliers, consultants, and independent contractors) in the ordinary course of business;
(xiii) Each Contract containing a license to any Group Company under any Licensed Intellectual Property;
(xiv) Each Contract pursuant to which any material Owned Intellectual Property is or was developed by any third party for any Group Company (in each case excluding (i) non-exclusive licenses to “off the shelf” third party computer software that is licensed on generally available, standard commercial terms and (ii) licenses for open-source software);
(xv) Each Contract that contains a most-favored nations clause, non-competition covenant, non-solicitation of employees, customers or clients covenant or any other covenant that restricts, precludes or limits any of the Group Companies (or purports to bind any Affiliate thereof) from operating or freely engaging in any line of business or in any geographic location or with any Person or during any period of time, or from developing, marketing, selling, distributing or otherwise exploiting any service or products;
(xvi) All Contracts that grant to any counterparty to such Contract a right of first refusal, first offer or first negotiation, or similar right with respect to any material assets, rights, or properties of the Group Companies;
(xvii) All Contracts that contain indemnification provisions, an earn-out or the payment of a deferred purchase price other than in the ordinary course of business;
(xviii) All Contracts that are settlement, conciliation, or similar agreements, other than releases entered into with former employees or independent contractors in the ordinary course of business;
(xix) All Contracts involving transactions with an Affiliate of the Company;
(xx) each Leased Real Property lease; and
(xxi) Each obligation to register any Company Common Stock, Company Preferred Stock or other securities of the Company with any Governmental Entity.
(b) Except for each All Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Contracts are: (i) each Company Material Contract is in full force and effect effect, subject to the Remedies Exception; and represents a legal, (ii) represent the valid and binding obligation obligations of the applicable Group Company or one of the Company Subsidiaries party thereto and, to the Knowledge of the Company, represents a legal, represent the valid and binding obligation obligations of the counterparties thereto (subject in each case other parties thereto. True, correct and complete copies of all Company Material Contracts have been made available to Parent. None of the Enforcement Exceptions), (ii) neither the Company Group Companies nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would become a material breach of or default under, any of the Company Material ContractContracts, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written or, to the Knowledge of the Company, oral, claim or notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available which individually or in the aggregate, would be reasonably likely to SPACbe material to the Group Companies, taken as a whole.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Revolution Medicines, Inc.), Merger Agreement (CM Life Sciences III Inc.)
Agreements, Contracts and Commitments. (a) Section 4.19(aSchedule 5.17(a) of the Company Plutus Disclosure Letter sets forth a true, correct and complete list of each Company Plutus Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Plutus Material Contract” of the Plutus Group Companies shall mean each of the following Contracts to which a an Plutus Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved or purchase commitment reasonably expected to result in future payments to or by any Plutus Group Company in excess of US$500,000 per annum;
(ii) (x) any Contract with the expenditure or receipt by top 5 customers of the Plutus Group Companies (the “Plutus Material Customers”) as determined by revenue and (y) top 5 suppliers and distributors of more the Plutus Group Companies by amounts payables (the “Plutus Material Suppliers”) (all, other than $10,000,000 purchase or service orders accepted, confirmed or entered into in the aggregate ordinary course of business or with professional advisors), in each case during the twelve (12) -month period ending ended on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 20212024;
(iiiii) any Contract that purports to limit in any material respect (A) the localities in which the Plutus Group Companies’ businesses may be conducted, (B) any Plutus Group Company from engaging in any line of business or (C) any Plutus Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the Plutus Group Companies from soliciting customers or employees;
(iiiiv) any Contract that is related to the governance or operation of any joint ventureventure or partnership that has involved a sharing of revenues, partnership profits, cash flows, expenses or similar arrangementlosses with any other party or a payment of royalties to any other party, other than such contract Contract solely between or among any of the Plutus Group Companies;
(ivv) any Contract for or relating to any borrowing of money by or from any of the Company Plutus Group Companies in excess of $100,000,000 US$2,000,000 (excluding excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Plutus Group Companies);
(vvi) any employment or management Contract (other than those made in the ordinary course of business): (A) providing for annual payments in excess the grant of $1,500,000;
(vi) each Contract that contains a putany rights of refusal, call, right rights of first negotiation, most-favored-nation or similar rights to purchase or lease any asset of the Plutus Group Companies; or (B) providing for any exclusive rights, rights of refusal, right rights of first offer negotiation, most-favored-nation or similar right pursuant rights to which the Group Companies would be required to, directly sell or indirectly, purchase distribute any product or sell, as applicable, any securities, capital stock or other interests, assets or business service of any other Personof the Plutus Group Companies;
(vii) any obligation to register any Plutus Shares or other securities of the Plutus Group Companies with any Governmental Entity (other than ordinary course requirements of foreign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. Plutus Group Companies);
(viii) any Contracts relating to the sale of any operating business of any Plutus Group Company or the acquisition by any Plutus Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Plutus Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiiix) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ixx) any Contract for the use by any of the Plutus Group Companies of any tangible property where the annual lease payments are greater than US$500,000 (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material Plutus Real Property Leases”);
(xi) any material Contract under which any of the Plutus Group Companies: (A) licenses or is granted rights a license, option, covenant not to use sue or any right to or under any material Intellectual Property from any third party (“Inbound License”)party, other than Incidental Inbound LicensesLicenses or licenses for Open Source Software; or (B) licenses grants a license, option, covenant not to sue, or grants rights any right to use Intellectual Property or under any material Plutus Owned IP to any third party (party, other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to contractors, suppliers, vendors, distributors or customers in the ordinary course of businessbusiness in object code form, for the use by such customers of the Plutus Group Companies’ products or services or the provision of services by such contractors, suppliers, vendors, or distributors to the Plutus Group Companies;
(xii) any Contract involving any resolution or settlement of any actual or threatened Legal Proceeding that is material to the Plutus Group Companies or their businesses or that imposes material non-monetary obligations on an Plutus Group Company, including any material restriction on the use, licensing or registration of any material Intellectual Property (including co-existence agreements);
(xiii) any Contract relating to the development of material Intellectual Property by, with or for the Plutus Group Companies (other than Plutus Contributor Agreements);
(xiv) any Contract filed (or which is required to be filed) as an exhibit to P▇▇▇▇▇’s most recently filed annual report on Form 20-F as a “material contract” pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act; and
(xxv) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Each Plutus Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable Plutus Group Company party thereto and, to the Knowledge of the CompanyPlutus, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions), (ii) neither availability of equitable remedies. Neither the applicable Plutus Group Company nor, to the Knowledge of the CompanyPlutus, any other party thereto, is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would reasonably be expected to become a material breach of or default under, any Company Plutus Material Contract, and (iii) as of the date of this Agreement, no party to any Company Plutus Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Plutus Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACthe Target.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 4.19(aSchedule 4.18(a) of the Company DWM Disclosure Letter sets forth a true, correct and complete list of each Company DWM Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company DWM Material Contract” of the DWM Group Companies shall mean each of the following Contracts to which a DWM Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract or purchase commitment reasonably expected to result in future payments to or by any DWM Group Company in excess of $500,000 per annum (other than any Contract or purchase commitment with respect to transaction of Token that involved the expenditure is reasonably expected to result in future payments to or receipt by the any DWM Group Companies Company of no more than $10,000,000 in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 20215,000,000);
(ii) any Contract with the top 10 customers of the DWM Group Companies (the “DWM Material Customers”) as determined by the scale of customers’ assets under management by the DWM Group Companies as of June 30, 2024;
(iii) any Contract that purports to limit in any material respect (A) the localities in which the DWM Group Companies’ businesses may be conducted, (B) any DWM Group Company from engaging in any line of business or (C) any DWM Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the DWM Group Companies from soliciting customers or employees;
(iiiiv) any Contract that is related to the governance or operation of any joint ventureventure or partnership that has involved a sharing of revenues, partnership profits, cash flows, expenses or similar arrangementlosses with any other party or a payment of royalties to any other party, other than such contract Contract solely between or among any of the DWM Group Companies;
(ivv) any Contract for or relating to any borrowing of money by or from any of the Company DWM Group Companies in excess of $100,000,000 1,000,000 (excluding excluding, for the avoidance of doubt, any Contract with respect to transaction of Token that involves payments to or by any DWM Group Company of no more than $5,000,000 and any intercompany arrangements solely between or among any of the DWM Group Companies);
(vvi) any employment or management Contract (other than those made in the ordinary course of business): (A) providing for annual payments in excess the grant of $1,500,000;
(vi) each Contract that contains a putany rights of refusal, call, right rights of first negotiation, most-favored-nation or similar rights to purchase or lease any asset of the DWM Group Companies; or (B) providing for any exclusive rights, rights of refusal, right rights of first offer negotiation, most-favored-nation or similar right pursuant rights to which the Group Companies would be required to, directly sell or indirectly, purchase distribute any product or sell, as applicable, any securities, capital stock or other interests, assets or business service of any other Personof the DWM Group Companies;
(vii) any obligation to register any DWM Shares or other securities of the DWM Group Companies with any Governmental Entity (other than ordinary course requirements of foreign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. DWM Group Companies);
(viii) any Contracts relating to the sale of any operating business of any DWM Group Company or the acquisition by any DWM Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any DWM Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiiix) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ixx) any Contract for the use by any of the DWM Group Companies of any tangible property where the annual lease payments are greater than $250,000 (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material DWM Real Property Leases”);
(xi) any material Contract under which any of the a DWM Group CompaniesCompany: (A) licenses or is granted rights a license, option, covenant not to use sue, or any right to or under any material Intellectual Property from any third party (“Inbound License”)party, other than Incidental Inbound LicensesLicenses or licenses for Open Source Software; or (B) licenses grants a license, option, covenant not to sue, or grants rights any right to use Intellectual Property or under any material DWM Owned IP to any third party (party, other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to contractors, suppliers, vendors, distributors or customers in the ordinary course of business); andbusiness in object code form, for the use by such customers of the DWM Group Companies’ products or services or the provision of services by such contractors, suppliers, vendors, or distributors to the DWM Group Companies;
(xxii) any Contract involving any resolution or settlement of any actual or threatened Legal Proceeding that is material to the DWM Group Companies or their businesses or that imposes material non-monetary obligations on any DWM Group Company, including any material restriction on the use, licensing or registration of any material Intellectual Property (including co-existence agreements);
(xiii) any Contract relating to the development of material Intellectual Property by, with or for the DWM Group Companies (other than DWM Contributor Agreements);
(xiv) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other PersonsPersons (other than any obligation under any Contract with respect to transaction of Token that involves payments to or by any DWM Group Company of no more than $5,000,000); and
(xv) any Contract with Token exchanges, brokers, suppliers or transaction counterparties and any other Person from whom the DWM Group Companies source Tokens that involves payments to or by any DWM Group Company in excess of $5,000,000.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Each DWM Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable DWM Group Company party thereto and, to the Knowledge of the CompanyDWM, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions), (ii) neither availability of equitable remedies. Neither the applicable DWM Group Company nor, to the Knowledge of the CompanyDWM, any other party thereto, is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would reasonably be expected to become a material breach of or default under, any Company DWM Material Contract, and (iii) as of the date of this Agreement, no party to any Company DWM Material Contract has given any written notice of any claim of any such breach, default or event, or any notice of termination. True, correct and complete copies of all Company DWM Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACICLK.
(c) Each Contract to which WFTL is a party that, in accordance with the DWM Asset Restructuring Plan, shall be assigned to DWM or one or more Subsidiaries of DWM (the “WFTL Assigned Contracts”) is in full force and effect and represents a legal, valid and binding obligation of the applicable DWM Group Company party thereto and, to the Knowledge of DWM, 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 similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies, and except as would not reasonably be expected to be material to the DWM Group Companies taken as a whole. Neither the WFTL, the applicable DWM Group Company nor, to the Knowledge of DWM, any other party thereto, is in material breach of or in default under, and no event has occurred which with notice or lapse of time or both would reasonably be expected to become a material breach of or default under, any WFTL Assigned Contract, and no party to any WFTL Assigned Contract has given any written notice of any claim of any such breach, default or event, or any notice of termination.
Appears in 1 contract
Sources: Merger Agreement (iClick Interactive Asia Group LTD)
Agreements, Contracts and Commitments. (a) Section 4.19(aSchedule 3.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a any of the Group Company Companies is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leaseparty:
(i) Each Contract continuing over a period of more than 12 months from the date thereof, not terminable by the Company upon 60 days’ or less notice without liability or penalty (other than (A) agreements for the provision of Company’s products or services, (B) purchase orders and insertion orders with suppliers or customers, (C) non-exclusive licenses of Owned Intellectual Property granted to customers and vendors, and (D) non-exclusive licenses for content or assets used in the services and products of the Group Companies, in each Contract case (A), (B), (C) and (D), entered into in the ordinary course of business) that involved the expenditure Company reasonably anticipates will involve annual payments or receipt consideration furnished (1) by any of the Group Companies of more than $10,000,000 in 500,000; or (2) to any of the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 20211,000,000;
(ii) Each Contract relating to Indebtedness by any of the Group Companies from a third party, in each case, having an outstanding principal amount, together with any undrawn commitments to fund Indebtedness under such Company Material Contract, in excess of $250,000;
(iii) Each Contract that purports to limit in for the acquisition of any Person or any business division thereof or the disposition of any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability assets of any of the Group Companies from soliciting customers or employees;
(iii) 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 in the ordinary course of the Group Companies;
(iv) any Contract for or relating to any borrowing of money by or from the Company business), in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(v) any employment or management Contract providing for annual payments in excess of $1,500,000;
(vi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating businesscase, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations otherwise (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business)) occurring in the past five years;
(viiiiv) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and
(x) any Each obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;
(v) Each collective bargaining agreement or other agreement with any labor union, works council or similar organization respecting employees of the Group Companies;
(vi) Each employment or consulting (with respect to an individual, independent contractor) Contract (A) providing for annual base salary or consulting fee payments in excess of $250,000, (B) with respect to officers or employees at or above a SVP level, or (C) providing for any severance, termination, change-in-control, or retention payments, excluding, in the case of (A) and (B) any such employment, consulting, or management Contract that is terminable by the Company or the applicable Company Subsidiary at will;
(vii) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property; and (B) involves annual payments in excess of $250,000;
(viii) Each joint venture Contract, partnership agreement or limited liability company agreement with a third party (in each case, other than with respect to wholly owned Company Subsidiaries);
(ix) Each Contract that purports to limit or contains covenants expressly limiting in any material respect the freedom of any of the Group Companies to: (A) compete with any Person in a product line or line of business, (B) otherwise develop, market, sell, distribute or otherwise exploit any service or products; or (C) operate in any geographic area;
(x) Each Contract (other than those made in the ordinary course of business): (A) providing for the grant of any preferential rights to purchase or lease any material asset (other than any services or products) of the Group Companies; or (B) providing for any exclusive right to sell or distribute any material product or service of any of the Group Companies;
(xi) Each Contract pursuant to which any of the Group Companies licenses material Intellectual Property from a third party, other (A) than click-wrap, shrink-wrap and off-the-shelf, non-customized software licenses, and any other similar software licenses (including software-as-a-service) that are commercially available on standard terms to the public generally with license, maintenance, support and other fees less than $500,000 per year, and open source software licenses, and (B) non-exclusive licenses for content or assets used in the services and products of the Group Companies involving payments of less than $500,000 per year; and
(xii) Each obligation to register any Company Common Stock, Company Preferred Stock or other securities of the Company with any Governmental Entity.
(b) Except for each All Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Contracts are: (i) each Company Material Contract is in full force and effect effect, subject to the Remedies Exception; and represents a legal, (ii) represent the valid and binding obligation obligations of the applicable Group Company or one of the Company Subsidiaries party thereto and, to the Knowledge of the Company, represents a legal, represent the valid and binding obligation obligations of the counterparties thereto (subject in each case other parties thereto. True, correct and complete copies of all Company Material Contracts have been made available to Parent. None of the Enforcement Exceptions), (ii) neither the Company Group Companies nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would become a material breach of or default under, any of the Company Material ContractContracts, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written or, to the Knowledge of the Company, oral, claim or notice of any claim of any such breach, default or event. True, correct and complete copies of all which individually or in the aggregate, would be reasonably likely to have a Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACAdverse Effect.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 4.19(aSchedule 4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved or purchase commitment reasonably expected to result in future payments to or by any Group Company in excess of $3,400,000 per annum;
(ii) (x) any Contract with the expenditure or receipt by top 20 customers of the Group Companies (the “Material Customers”) as determined by revenue and/or by strategic value and (y) top 20 banking suppliers and distributors and payment processors of more the Group Companies by transfer or processing volume, as applicable (the “Material Suppliers”) (all, other than $10,000,000 purchase or service orders accepted, confirmed or entered into in the aggregate ordinary course of business), in each case during the twelve (12) -month period ending ended on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 20212020;
(iiiii) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iiiiv) 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;
(v) 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;
(ivvi) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 3,400,000, including the Existing Credit Agreement (excluding excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Group Companies);
(vvii) any employment or management Contract providing for annual payments in excess of $1,500,000250,000;
(viviii) each any Contract that contains a put, call, (other than those made in the ordinary course of business): (A) providing for the grant of any preferential rights to purchase or lease any asset of the Company; or (B) providing for any exclusive or preferred right to sell or distribute any product or service of first refusal, right any of first offer the Group Companies;
(ix) any obligation to register any Company Shares or similar right pursuant to which other securities of the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, with any securities, capital stock or Governmental Entity (other interests, assets or business than ordinary course requirements of any other Personforeign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. Group Companies);
(viix) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 3,400,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiixi) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ixxii) any Contract for the use by any of the Group Companies of any tangible property where the annual lease payments are greater than $700,000 (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material Company Real Property Leases”);
(xiii) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and
(xxiv) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Each Company 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 (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions), (ii) neither availability of equitable remedies. Neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would become a material breach of or default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (FTAC Olympus Acquisition Corp.)
Agreements, Contracts and Commitments. (a) Section 4.19(a) 2.12 of the Company Disclosure Letter Schedule sets forth a trueall material Contracts (excluding oil and gas leases and assignments, correct agreements creating other oil and complete list of each gas interests, joint operating agreements and exploration/participation agreements under which the Company Material Contract (as defined belowdoes not have any unperformed material obligations) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group the Company is a party as of the date of this Agreement(each, in each casea "Company Material Contract"), other than any Employee Benefit Plan or Company Real Property Lease:
including, but not limited to, Contracts (i) each Contract that involved relates to indebtedness for borrowed money in an amount exceeding $1 million, (ii) that is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the expenditure SEC), (iii) that obligates the Company to make any payments or receipt by issue or pay anything of value to any director, officer, key employee or consultant, (iv) that limits or purports to limit the Group Companies ability of the Company to compete in the United States or Canadian oil and gas exploration, production and marketing business with any Person in any geographic area or during any period of time, (v) that includes any material indemnification, contribution or guarantee obligations, (vi) that relates to capital expenditures involving total payments of more than $10,000,000 in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021;
(ii) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be conducted500,000, (Bvii) any Group Company from engaging in any line of business that requires annual or (C) any Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iii) 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;
(iv) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(v) any employment or management Contract providing for annual remaining payments in excess of $1,500,000;
100,000 after the date hereof, (viviii) each Contract that contains is a putseismic license agreement, call, right (ix) that is a fixed price commodity sales agreement with a remaining term of first refusal, right of first offer more than 60 days or similar right pursuant (x) that obligates the Company to which the Group Companies would be required provide funds to, directly or indirectly, purchase or sell, as applicable, make any securitiesinvestment (in the form of a loan, capital stock contribution or other interestsotherwise) in, assets or business of any other Person;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viii) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material . Each such Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and
(x) any obligation to make any material payments, contingent or otherwise, arising out of is valid and binding on the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date parties thereto and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is in full force and effect and represents a legal, valid and binding obligation (y) upon consummation of the applicable Group Contemplated Transactions shall continue in full force and effect except where such failure would not result in a Company party thereto and, to the Knowledge of the Company, represents a legal, valid and binding obligation of the counterparties thereto Material Adverse Effect.
(subject in each case to the Enforcement Exceptions), (iib) neither the The Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or not in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, in any Company Material Contract, and (iii) as of the date of this Agreement, no party to respect under any Company Material Contract has given to which it is a party or by which it or any written notice of any claim of any such breachits properties or assets is bound, which default or event. True, correct and complete copies of all would have a Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Equity Oil Co)
Agreements, Contracts and Commitments. (a) Section 4.19(a4.18(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Lease:
(i) each Contract that involved the expenditure or receipt by the Group Companies of more than $10,000,000 5,000,000 in the aggregate during the twelve (12) twelve-month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 5,000,000 in the aggregate in the twelve (12) twelve-month period ending December 31, 2021;
(ii) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iii) 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;
(iv) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 5,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(v) any employment or management Contract providing for annual payments in excess of $1,500,000500,000;
(vi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 5,000,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viii) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business);
(x) each Prior Preferred Share Purchase Agreement; and
(xxi) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to haveDate, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company 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 (subject in each case to the Enforcement Exceptions), (ii) neither . Neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, any Company Material Contract, and (iii) and, as of the date of this Agreement, no party to any Company Material Contract has given any written notice (i) of any claim of any such breach, default or eventevent or (ii) that it intends to cease doing business with any Group Company or materially decrease the volume of business that it presently conducts with any Group Company. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Fintech Acquisition Corp V)
Agreements, Contracts and Commitments. (a) Section 4.19(aSchedule 5.17(a) of the Company ICLK Disclosure Letter sets forth a true, correct and complete list of each Company ICLK Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company ICLK Material Contract” of the ICLK Group Companies shall mean each of the following Contracts to which a an ICLK Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved or purchase commitment reasonably expected to result in future payments to or by any ICLK Group Company in excess of $500,000 per annum;
(ii) (x) any Contract with the expenditure or receipt by top 10 customers of the ICLK Group Companies (the “ICLK Material Customers”) as determined by revenue and (y) top 10 suppliers and distributors of more the ICLK Group Companies by amounts payables (the “ICLK Material Suppliers”) (all, other than $10,000,000 purchase or service orders accepted, confirmed or entered into in the aggregate ordinary course of business or with professional advisors), in each case during the twelve (12) -month period ending ended on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 20212023;
(iiiii) any Contract that purports to limit in any material respect (A) the localities in which the ICLK Group Companies’ businesses may be conducted, (B) any ICLK Group Company from engaging in any line of business or (C) any ICLK Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the ICLK Group Companies from soliciting customers or employees;
(iiiiv) any Contract that is related to the governance or operation of any joint ventureventure or partnership that has involved a sharing of revenues, partnership profits, cash flows, expenses or similar arrangementlosses with any other party or a payment of royalties to any other party, other than such contract Contract solely between or among any of the ICLK Group Companies;
(ivv) any Contract for or relating to any borrowing of money by or from any of the Company ICLK Group Companies in excess of $100,000,000 1,000,000 (excluding excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the ICLK Group Companies);
(vvi) any employment or management Contract (other than those made in the ordinary course of business): (A) providing for annual payments in excess the grant of $1,500,000;
(vi) each Contract that contains a putany rights of refusal, call, right rights of first negotiation, most-favored-nation or similar rights to purchase or lease any asset of the ICLK Group Companies; or (B) providing for any exclusive rights, rights of refusal, right rights of first offer negotiation, most-favored-nation or similar right pursuant rights to which the Group Companies would be required to, directly sell or indirectly, purchase distribute any product or sell, as applicable, any securities, capital stock or other interests, assets or business service of any other Personof the ICLK Group Companies;
(vii) any obligation to register any ICLK Shares or other securities of the ICLK Group Companies with any Governmental Entity (other than ordinary course requirements of foreign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. ICLK Group Companies);
(viii) any Contracts relating to the sale of any operating business of any ICLK Group Company or the acquisition by any ICLK Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any ICLK Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiiix) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ixx) any Contract for the use by any of the ICLK Group Companies of any tangible property where the annual lease payments are greater than $250,000 (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material ICLK Real Property Leases”);
(xi) any material Contract under which any of the ICLK Group Companies: (A) licenses or is granted rights a license, option, covenant not to use sue or any right to or under any material Intellectual Property from any third party (“Inbound License”)party, other than Incidental Inbound LicensesLicenses or licenses for Open Source Software; or (B) licenses grants a license, option, covenant not to sue, or grants rights any right to use Intellectual Property or under any material ICLK Owned IP to any third party (party, other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to contractors, suppliers, vendors, distributors or customers in the ordinary course of business); andbusiness in object code form, for the use by such customers of the ICLK Group Companies’ products or services or the provision of services by such contractors, suppliers, vendors, or distributors to the ICLK Group Companies;
(xxii) any Contract involving any resolution or settlement of any actual or threatened Legal Proceeding that is material to the ICLK Group Companies or their businesses or that imposes material non-monetary obligations on an ICLK Group Company, including any material restriction on the use, licensing or registration of any material Intellectual Property (including co-existence agreements);
(xiii) any Contract relating to the development of material Intellectual Property by, with or for the ICLK Group Companies (other than ICLK Contributor Agreements);
(xiv) any Contract filed (or which is required to be filed) as an exhibit to ICLK’s most recently filed annual report on Form 20-F as a “material contract” pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(xv) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons; and
(xvi) any Contract with Token exchanges, brokers, suppliers or transaction counterparties and any other Person from whom the ICLK Group Companies source Tokens.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Each ICLK Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable ICLK Group Company party thereto and, to the Knowledge of the CompanyICLK, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions), (ii) neither availability of equitable remedies. Neither the applicable ICLK Group Company nor, to the Knowledge of the CompanyICLK, any other party thereto, is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would reasonably be expected to become a material breach of or default under, any Company ICLK Material Contract, and (iii) as of the date of this Agreement, no party to any Company ICLK Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company ICLK Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACDWM.
Appears in 1 contract
Sources: Merger Agreement (iClick Interactive Asia Group LTD)
Agreements, Contracts and Commitments. (a) Section 4.19(a4.18(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Lease:
(i) each Contract that involved the expenditure or receipt by the Group Companies of more than $10,000,000 250,000 in the aggregate during the twelve (12) month 12)-month period ending on December 31, 2020 or would are reasonably expected to involve the expenditure or receipt by Group Companies of more than $10,000,000 250,000 in the aggregate in the twelve (12) month 12)-month period ending December 31, 2021;2021;
(ii) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;employees (other than customary non-disclosure or confidentiality agreements);
(iii) 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;
(iv) any Contract between the Company and any Company Shareholders (or, to the Knowledge of the Company, among any Company Shareholders) relating to the ownership, voting or disposition of the Company Securities;
(v) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 100,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(vvi) any Contract for capital expenditures in excess of $250,000;
(vii) any Contract for the manufacture of any Product;
(viii) any employment or management Contract providing for annual payments by a Group Company in excess of $1,500,000250,000;
(viix) each any Contract under which any Group Company is, or may become, obligated to incur any severance pay or compensation obligations that would become payable by reason of this Agreement or the Transactions;
(x) any Contract that contains a put, call, right of first refusal, or right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(viixi) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 100,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);business);
(viiixii) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements arrangements, in each case with any labor union, labor organization, or works council;council;
(ixxiii) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets or other Confidential Information and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); business); and
(xxiv) any Contract under which any Group Company has, or may have, any liability to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to make pay any material paymentslegal, contingent accounting, brokerage, finder’s, or otherwise, arising out of similar fees or expenses) in connection with this Agreement or the prior acquisition of the business, assets or stock of other PersonsTransactions.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date Date, and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company 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 (subject in each case to the Enforcement Exceptions), (ii) neither . Neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in material default under, and no event has occurred which, with notice or lapse of time or both, would become constitute a material breach of or material default under, any Company Material Contract, and (iii) and, as of the date of this Agreement, to the Knowledge of the Company, no party to any Company Material Contract has given any written notice (i) of any claim of any such breach, default or eventevent or (ii) that it intends to cease doing business with any Group Company or materially decrease the volume of business that it presently conducts with any Group Company. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 1 contract
Sources: Business Combination Agreement (MedTech Acquisition Corp)
Agreements, Contracts and Commitments. (a) Section 4.19(a) of the Company Disclosure Letter sets Except as contemplated by this Agreement or as set forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” Schedule 2.15 of the Group Companies shall mean each of the following Contracts to which a Disclosure Letter, no Group Company is a party as to or bound by any of the date following, which are subsisting or outstanding or in respect of this Agreementwhich a Group Company has any current or potential future Liability:
(a) any collective bargaining agreements;
(b) any agreements or arrangements that contain any redundancy, in each caseseverance pay, or post-employment Liabilities;
(c) any other employment or consulting agreement or commitment with any officer, employee, director, Shareholder, or any other Person, other than those that are terminable at the will of a Group Company, without liability;
(d) any Employee Benefit Plan bonus, deferred compensation, pension, profit sharing or Company Real Property Lease:retirement plans, or any other employee benefit plans or arrangements;
(e) any agreement or plan, including, without limitation, any stock option plan, share appreciation rights plan or share 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;
(f) any fidelity or surety bond or completion bond;
(g) any Contract or group of related Contracts for the lease of personal property having a value individually in excess of (euro)10,000;
(h) any Contract of indemnification or guarantee;
(i) each Contract that involved the expenditure or receipt by the Group Companies of more than $10,000,000 in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021;
(ii) any Contract that purports to limit in containing any material respect (A) covenant limiting the localities in which the Group Companies’ businesses may be conducted, (B) freedom of any Group Company from engaging to engage in any line of business or (C) to compete with any Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iii) 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;
(iv) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(v) any employment or management Contract providing for annual payments in excess of $1,500,000;
(vi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(viij) any Contracts relating to capital expenditures or involving future payments (other than employment arrangements) individually in excess of (euro)25,000;
(k) any Contracts relating to the sale borrowing of money by any operating business Group Company or extension of credit to any Group Company;
(l) any Contract concerning confidentiality;
(m) any purchase order or Contract for the purchase of materials (excluding capital expenditures) involving (euro)10,000 or more individually or (euro)3,000,000 or more in the aggregate;
(n) any construction contracts;
(o) any sales representative, original equipment manufacturer, value added reseller, remarketer, or other Contract for distribution of the product or services of any Group Company or the acquisition product or services of any other Person, or any dealer, join marketing, or development Contract;
(p) any Contract pursuant to which any Group Company has advanced or loaned any amount to any Person, other than business travel advanced in the Ordinary Course of Business; or
(q) to the extent not reported in the Group Financial Statements, any other Contract (other than Contracts relating to employment) that involve payment by any Group Company of any operating business, whether by merger, purchase (euro)50,000 or sale more in respect of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 such Contract and for which any is not cancellable without penalty within thirty (30) days. No Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viii) any collective bargaining agreementbreached, violated, or any other labor-related agreements or arrangements with any labor union, labor organizationdefaulted under, or works council;
(ix) any material Contract under which received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Contract or commitment required to be set forth pursuant to Section 2.14 or Section 2.15 of this Agreement (any such Contract or commitment, a "Company Contract"). To the knowledge of each Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any Company and each of the Group Companies provides another Person a limitedShareholders, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and
(x) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable is not subject to any default thereunder by any party obligated to any Group Company party thereto and, to the Knowledge of the Company, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to the Enforcement Exceptions), (ii) neither the Company nor, to the Knowledge of the Company, any other party pursuant thereto, is in material breach of or in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 4.19(a) Schedule 5.19 of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this AgreementAgreement (other than the Company Real Property Leases which are set forth on Schedule 5.13(b) of the Company Disclosure Letter). For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each Company Real Property Lease and each of the following Contracts to which any of the Group Companies is a party or by which any Group Company is a party as of the date of this Agreement, in each case, other than bound or under which any Employee Benefit Plan Group Company has any obligation or under which any Group Company Real Property Leasehas any right or interest:
(i) each Each Contract that involved the expenditure payments or receipt consideration furnished by or to (but not amongst) any of the Group Companies of more than $10,000,000 3,000,000 in the aggregate during most recently completed fiscal year of the twelve applicable Group Company, excluding (12x) month period ending on December 31any agreements that would, 2020 by their nature, constitute Company Transaction Costs or would involve the expenditure or receipt by Group Companies (y) any Contract otherwise included under subsection (ii) through (xviii) of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021this Section 5.19(a);
(ii) Each Contract with any Material Editor;
(iii) Each Contract that purports to limit in any material respect (A) the localities in under which the Group Companies’ businesses may be conducted, (B) any Group Company from engaging has created, incurred, assumed or guaranteed Indebtedness or issued any note, indenture or other evidence of Indebtedness, has the right to draw upon credit that has been extended for Indebtedness, or has granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness, excluding, for the avoidance of doubt, trade payables in the ordinary course of business;
(iv) Each Contract for the acquisition of any line Person or any business division thereof or the disposition of business or (C) any Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability material assets of any of the Group Companies from soliciting customers or employees;
(iii) any Contract that is related to the governance or operation of any joint ventureCompanies, partnership or similar arrangement, other than such contract solely between or among any of the Group Companies;
(iv) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(v) any employment or management Contract providing for annual payments in excess of $1,500,000;
(vi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating businesscase, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations otherwise (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business)) occurring in the last three (3) years and under which any Group Company has any remaining obligation of greater than $1,500,000 or for a time period of greater than one (1) year;
(v) Each Contract to make payments, contingent or otherwise, (A) arising out of any prior acquisition or disposition of the business, assets or stock of any of the Group Companies or other Persons in the last three (3) years, or (B) that has, or is reasonably expected to have, a value in excess of $1,000,000 in any single instance or in excess of $3,000,000 in the aggregate in any 12-month period;
(vi) Each collective bargaining agreement with any labor union;
(vii) Each employment or consulting (with respect to an individual, independent contractor) Contract providing for annual base salary or consulting fee payments in excess of $300,000, excluding any such employment, consulting, or management Contract that is terminable by the Company or the applicable Company Subsidiary at will or upon 180 days’ notice or less;
(viii) any collective bargaining Each lease, rental agreement, installment and conditional sale agreement, or any other labor-related agreements or arrangements with any labor unionsimilar Contract that, labor organizationin each case, (A) provides for the ownership of, leasing of, title to, use of, or works councilany leasehold or other interest in any personal property; and (B) involves annual payments in excess of $1,500,000;
(ix) Each joint venture Contract, partnership agreement, limited liability company agreement or similar Contract (in each case, other than with respect to wholly owned Company Subsidiaries);
(x) Each Contract (other than Company Benefit Plans) that purports to limit or contains covenants expressly limiting in any material respect the freedom of any of the Group Companies to: (A) compete with any Person in a product line or line of business; (B) operate in any geographic area; or (C) solicit subscribers or other customers;
(xi) Each Contract under (other than those made in the ordinary course of business): (A) providing for the grant of any preferential rights to purchase or lease any asset of the Group Companies; or (B) providing for any exclusive right to sell or distribute any material product or service of any of the Group Companies;
(xii) Each Contract (including any license agreement, coexistence agreement and agreement with a covenant not to ▇▇▇) that (A) contains any assignment or license of, or any covenant not to assert or enforce, any material Owned Intellectual Property; (B) pursuant to which any material Owned Intellectual Property is or was developed by, with or for any Group Company; or (C) pursuant to which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than Companies either (1) grants to a third Person a license, immunity, or other right in or to any material Owned Intellectual Property or (2) is granted by a third Person a license, immunity, or other right in or to any Intellectual Property or IT Systems material to the business of any Group Company, provided, however, that none of the following shall be required to be set forth on Schedule 5.19(xii) of the Company Disclosure Letter but shall constitute Company Material Contracts if they otherwise qualify: (w) non-disclosure or confidentiality exclusive licenses of Owned Intellectual Property by any Group Company for the purposes of marketing of any product of any Group Company in marketing agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and consistent with past practice; (2x) other non-exclusive licenses of Owned Intellectual Property granted to supplierssubscribers that are implied or incidental to the sale or purchase of goods and services, vendorsin each case, distributors or customers in the ordinary course of business)business consistent with past practice; (y) licenses of open source Software; and (z) click-wrap, shrink-wrap and off-the-shelf Software licenses of uncustomized Software that are available on standard terms to the public generally with license, maintenance, support and other fees less than $500,000 per year;
(xiii) Each Contract that contains a provision providing for the sharing of any revenue or cost-savings with any other Person, other than Contracts by and among the Group Companies entered into in the ordinary course of business consistent with past practice;
(xiv) Each Contract involving the settlement, conciliation or similar agreement of any Legal Proceedings or threatened Legal Proceeding with respect to the Company or any of the Company Subsidiaries, in each case (A) entered into in the past three (3) years and involving payments (exclusive of attorney’s fees) in excess of $500,000 in any single instance or in excess of $1,000,000 in the aggregate, or (B) that by its terms limits or restricts in any material respect the operations of any Group Company; provided, that, in the case of any Company Subsidiary, this representation is made with respect to the time that such Subsidiary has been a Company Subsidiary;
(xv) Each Contract requiring any capital commitment or capital expenditure (or series of capital commitments or expenditures) by any Group Company in an amount in excess of $2,000,000 annually or $5,000,000 over the life of the Contract;
(xvi) Each Contract pursuant to which any Person (other than a Group Company) has guaranteed the liabilities of a Group Company;
(xvii) Each Contract to register any Company Unit or other securities of the Company with any Governmental Entity; and
(xxviii) Each Contract not disclosed pursuant to any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(bclause under this Section 5.19(a) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually result in revenue or require expenditures in excess of $3,000,000 in the aggregatecalendar year ending December 31, a Company Material Adverse Effect, (i) each Company 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 (subject in each case to the Enforcement Exceptions), (ii) neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC2021.
Appears in 1 contract
Sources: Business Combination Agreement (Ascendant Digital Acquisition Corp.)
Agreements, Contracts and Commitments. (a) Section 4.19(a) of the Company Disclosure Letter Schedule 3.19 hereto sets forth a true, correct complete and complete accurate list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts (collectively, the “Material Company Group Contracts”) to which a the Company Group Company is a party as or by or to which any of the date properties or assets of this Agreementthe Company Group may be bound, subject or affected, excluding Contracts made in each case, other than any Employee Benefit Plan or the ordinary course of business for the purchase of equipment and supplies for the construction of solar projects (the “Company Real Property Lease:Group Contracts”):
(i) each Contract that involved the expenditure providing for payments (present or receipt by the Group Companies of more than $10,000,000 in the aggregate during next five years) to the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Company Group Companies in excess of more than $10,000,000 1.25 million in the aggregate in the twelve (12) month period ending December 31, 2021aggregate;
(ii) any Contract that purports to limit under or in any material respect (A) the localities in of which the Company Group Companies’ businesses may be conducted, presently has any liability or obligation in excess of (Bpresent or in the next five years) any Group Company from engaging in any line of business or (C) any Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees$1.25 million;
(iii) any Contract that is related between the Company Group, on the one hand, and any officer, director, employee, shareholder or holder of derivative securities (“Insider”) of the Company Group or an Affiliate of an Insider of the Company Group, on the other hand, excluding contracts of employment or similar, or contracts relating to the governance Contingent Acquisitions or operation of any joint ventureAevitas acquisitions elsewhere disclosed, partnership or similar arrangement, other than such contract solely and excluding transactions between or among any of the Company Group CompaniesMembers and their wholly owned subsidiaries;
(iv) any Contract for involving any guaranty, direct or relating to any borrowing of money indirect, by or from the Company Group of any obligation for borrowings or otherwise in excess of $100,000,000 (500,000, excluding any intercompany arrangements solely endorsements made for collection in the ordinary course of business and indebtedness or cross guarantees between parent and subsidiary entities or among any of the Group Companies)similar;
(v) any employment Contract made other than in the ordinary course of business or management Contract (x) providing for annual payments in excess the grant of $1,500,000any preferential rights to purchase or lease any asset of the Company Group or (y) providing for any right (exclusive or non-exclusive) to sell or distribute, or otherwise relating to the sale or distribution of, any product or service of the Company Group;
(vi) each any Contract that contains a put, call, right to register any shares of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business securities of the Company Group with any other PersonGovernmental Entity;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viii) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and
(x) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.; and
(bviii) Except any Company Group Contract for each the acquisition of a business within the last twenty-four months. NY:1824684.16 Each Material Company Material Group Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date was entered into at arms’ length and except as has not had and would not reasonably be expected to have, individually or in the aggregateordinary course, a Company Material Adverse Effect, (i) each Company 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’s knowledge, represents a legal, is valid and binding obligation upon and enforceable against each of the counterparties thereto parties thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies. To the Company’s knowledge, no other party to a Material Company Group Contract is the subject of a bankruptcy or insolvency proceeding. True and correct copies of all Material Company Group Contracts and all offers and proposals that, if accepted, would constitute Material Company Group Contracts (subject or written summaries in each the case of oral Material Company Group Contracts or offers or proposals) have been provided to the Enforcement Exceptions)ARWA. Except as set forth in Schedule 3.19, (ii) neither the Company Group Members nor, to the Knowledge best of the Company’s knowledge, any other party thereto, thereto is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would become a material breach of or default under, any Material Company Material Group Contract, and (iii) as of the date of this Agreement, no party to any Material Company Material Group Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company which, individually or in the aggregate, would have a Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACAdverse Effect on the Company.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 4.19(a4.20(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved or purchase commitment reasonably expected to result in future payments to or by any Group Company in excess of $5,000,000 (or its equivalent in another currency) per annum;
(ii) any Contract with the expenditure or receipt by top 20 customers of the Group Companies of more than $10,000,000 (the “Material Customers”) as determined by revenue, in the aggregate each case during the twelve (12) -month period ending ended on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021;
(iiiii) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iiiiv) any Contract memorializing any Interested Party Transactions (other than those employment agreements, confidentiality agreements, non-competition agreements (for the benefit of a Group Company) or any other agreement of similar nature entered into in the ordinary course of business with employees or technical consultants) providing for annual payments in an amount equal to or greater than $100,000 (or its equivalent in another currency) per annum;
(v) 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;
(vi) 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;
(ivvii) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 1,000,000 (excluding or its equivalent in another currency) per annum (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Group Companies);
(vviii) any employment or management Contract providing for annual payments in excess of $1,500,000400,000 (or its equivalent in another currency);
(viix) each Contract that contains a put, call, any Contract: (A) providing for the grant of any preferential rights to purchase or lease any material asset of any Group Company; or (B) providing for any exclusive or preferred right to sell or distribute any material product or material service of first refusal, right any of first offer the Group Companies;
(x) any obligation to register any Company Ordinary Shares or similar right pursuant to which other securities of any of the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, with any securities, capital stock or Governmental Entity (other interests, assets or business than ordinary course requirements of any other Personforeign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. Group Companies);
(viixi) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and or for which any Group Company has any material outstanding obligations in excess of $200,000 (or its equivalent in another currency) per annum (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiixii) any collective bargaining agreement, agreement or any other labor-related agreements or arrangements similar labor Contract with any labor union, labor organization, or works council;
(ixxiii) any material Contract for the use by any of the Group Companies of any tangible property where the annual lease or mandate payments are greater than $80,000 (or its equivalent in another currency) (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material Company Real Property Leases”);
(xiv) any Contract under which any of the Group Companies: (A) licenses obtains the right to use, or is granted rights a covenant not to use be sued under, any material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses grants the right to use, or grants rights a covenant not to use be sued under, any material Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business);
(xv) any Contract pursuant to which any Group Company (i) provided material source code containing or embodying any Group Company Software to a third party or (ii) granted a third party a contingent right to receive source code containing or embodying any material Group Company Software, whether pursuant to an escrow arrangement or otherwise, in each case, other than to contractors and service providers performing services on behalf of the Group Companies;
(xvi) any Contract that creates guarantees or Liens of any nature on any of the Group Companies’ assets not in the ordinary course of business and in an amount equal or greater than $1,000,000 (or its equivalent in another currency); and
(xxvii) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other PersonsPersons and in an amount equal or greater than $2,000,000 (or its equivalent in another currency).
(b) Except for each any Company Material Contract that has been terminated in accordance with the terms of this Agreement or will terminate terminates upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to haveDate, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable Group Company Company, New PubCo or Merger Sub party thereto and, to the Knowledge of the Company, New PubCo or Merger Sub, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions)availability of equitable remedies. None of the Company, (ii) neither the Company New PubCo or Merger Sub nor, to the Knowledge of the Company, New PubCo or Merger Sub, any other party thereto, is in material breach of or in material default under, and and, to the Knowledge of the Company, New PubCo or Merger Sub, no event has occurred which, which with notice or lapse of time or both, both would become a material breach of or material default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such material breach, default or eventevent or has provided any formal written notice of any intention to terminate or modify, any such Company Material Contract. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section Schedule 4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date hereof (other than any Employee Benefit Plan):
(i) any Contract or purchase commitment reasonably expected to result in future payments to or by any Group Company in excess of this Agreement$2,000,000 per annum;
(ii) any Contract with (x) the top 10 customers of the Group Companies (the “Material Customers”) as measured by amounts received by the Group Companies on a consolidated basis for the 12-month period ended on December 31, 2020 and the 6-month period ended on June 30, 2021 and (y) the top 10 suppliers of the Group Companies as measured by amounts paid by the Group Companies on a consolidated basis for the 12-month period ended on December 31, 2020 and the 6-month period ended on June 30, 2021 (the “Material Suppliers”), in each case, other than any Employee Benefit Plan purchase or Company Real Property Lease:
(i) each Contract that involved the expenditure service orders accepted, confirmed or receipt by the Group Companies of more than $10,000,000 entered into in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies ordinary course of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021business;
(iiiii) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iiiiv) any Contract memorializing any Interested Party Transactions (other than those employment agreements, confidentiality agreements, non-competition agreements (for the benefit of a Group Company) or any other agreement of similar nature entered into in the Ordinary Course with employees or technical consultants) providing for annual payments in an amount equal to or greater than $2,000,000;
(v) any Contract in an amount equal to or greater than $2,000,000 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;
(vi) any Contract that is related to the governance or operation of any material joint venture, partnership or similar arrangement, other than such contract solely between or among any of the Group Companies;
(ivvii) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 2,000,000 (excluding excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Group Companies);
(vviii) any employment or management Contract (A) providing for annual payments in excess the grant of $1,500,000any preferential rights to purchase or lease any material asset of the Company; or (B) providing for any exclusive or preferred right to sell or distribute any material product or material service of the Group Companies taken as a whole;
(viix) each Contract that contains a put, call, right any obligation to register any Company Shares or other securities of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, with any securities, capital stock or Governmental Entity (other interests, assets or business than ordinary course requirements of any other Personforeign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. Group Companies);
(viix) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and case, for which any Group Company has any material outstanding obligations payment obligations;
(xi) any Contract for the use by any of the Group Companies of any tangible property where the annual lease payments are greater than $500,000 (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase any lease of inventory vehicles, office equipment or supplies entered into operating equipment made in the ordinary course of business) (the “Material Company Real Property Leases”);
(viiixii) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses obtains the right to use, or is granted rights a covenant not to use be sued under, any material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses grants the right to use, or grants rights a covenant not to use be sued under, any material Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors distributors, contractors or customers in the ordinary course of business);
(xiii) any Contract pursuant to which any Group Company (i) provided material source code containing or embodying any Group Company Software to a third party (other than contractors providing services to the Group Companies with respect thereto in the ordinary course of business) or (ii) granted a third party a contingent right to receive material source code containing or embodying any Group Company Software, whether pursuant to an escrow arrangement or otherwise;
(xiv) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council or other employee representative bodies; and
(xxv) any obligation Contract that creates guarantees or liens of any nature on the Group Companies’ assets not in the ordinary course of business and in an amount equal to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Personsgreater than $2,000,000.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Each Company 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 (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions), (ii) neither availability of equitable remedies. Neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default underunder and, and to the Knowledge of the Company, no event has occurred which, which with notice or lapse of time or both, both would become a material breach of or default under, any Company Material Contract, and (iii) as to the Knowledge of the date of this AgreementCompany, no party to any Company Material Contract has given any written notice of any claim of any such breach, default or eventevent or has provided any formal written notice of any intention to terminate, any such Company Material Contract. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 1 contract
Sources: Business Combination Agreement (Alpha Capital Acquisition Co)
Agreements, Contracts and Commitments. (a) Section 4.19(a) Schedule 4.19 of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each Company Real Property Lease and each of the following Contracts to which a any of the Group Company Companies is a party as of the date of this Agreementparty, in each case, other than excluding any Employee Company Benefit Plan or Company Real Property LeasePlan:
(i) each Each Contract (other than purchase orders with suppliers or customers entered into in the ordinary course of business) that involved the expenditure Company has involved, or receipt reasonably anticipates will involve, aggregate annual payments or consideration furnished by or to any of the Group Companies of more than $10,000,000 in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021500,000;
(ii) Each mortgage, note, debenture, instalment obligation, other evidence of indebtedness, guarantee, loan, credit or financing agreement, arrangement or instrument or other Contract for money borrowed by any Contract of the Group Companies from a third party or security agreement or other contract or instrument that purports to limit in grant any Lien on any material respect (A) the localities in which asset of the Group Companies’ businesses may be conducted, ;
(Biii) Each Contract for the acquisition of any Group Company from engaging in property or Person or any line business division thereof or the disposition of business or (C) any Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability material assets of any of the Group Companies from soliciting customers (in each case, other than in the ordinary course of business and whether structured as an acquisition of stock, assets or employeesotherwise), with outstanding obligations to make payments, contingent or otherwise (including with respect to “earnout” payments, notes or indemnification obligations), other than Contracts for the sale of obsolete equipment or Contracts in which the applicable acquisition or disposition has been consummated and there are no material continuing obligations in respect thereof;
(iiiiv) Each collective bargaining agreement, works council agreement or other similar Contract with any labor union or employee representatives;
(v) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that is related to that, in each case, (A) provides for the governance ownership of, leasing of, title to, use of, or operation any leasehold or other interest in any real property or personal property; and (B) involves annual payments in excess of any $500,000;
(vi) Each joint ventureventure Contract, partnership agreement, limited liability company agreement, strategic alliance agreement or other similar arrangementContract with a third party (a) involving any sharing of profits, revenues, fee income, losses, costs or liabilities or otherwise based in whole or in part on financial performance measures of the Group Companies or (b) pursuant to which the Group Companies have any ownership interest in any other Person (in each case, other than such contract solely between with respect to wholly owned Company Subsidiaries);
(vii) Each Contract (other than those made in the ordinary course of business): (A) providing for the grant of an option or among a first-refusal, first-offer or similar preferential right to purchase, lease or acquire any material asset of the Group Companies; (B) providing for any right to reproduce any products, services or technology of the Group Companies or (C) providing for any right (exclusive or non-exclusive) to sell or distribute any material product, service or technology of any of the Group Companies;
(ivviii) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies);
(v) any employment or management Contract providing for annual payments in excess of $1,500,000;
(vi) each Each Contract that contains a putis an IP License, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required excluding licenses to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viii) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses to Owned Intellectual Property granted to suppliers, vendors, distributors or customers in the ordinary course of business; (B) Open Source Software; and (C) off-the-shelf Software commercially available on standard, non-discriminatory terms for an annual or aggregate fee of no more than $500,000 per year;
(ix) Each Contract providing for the invention, creation, conception or other development of any Intellectual Property: (A) by any of the Group Companies for any third party, other than development for customers in the ordinary course of business for which the Company (or after the Reorganization, Newco) retains sole and exclusive ownership; (B) by any third party for any of the Group Companies, other than Contracts entered into with employees, consultants and independent contractors that are the subject of Section 4.17(e); or (C) jointly by any of the Group Companies and any third party;
(x) Each Contract granting any exclusivity, “most favored nations”, “take or pay” or similar rights;
(xi) Each Contract with any supplier (A) that is a sole source supplier to the Group Companies or (B) from which the Group Companies source substantially all of their supply of any material product or service, except where the Group Companies would likely be able to replace such source of supply with a substitute supply at substantially the same volume, on substantially comparable terms and without material delay;
(xii) Each Contract or customary non-disclosure agreement that purports to materially limit or contains covenants expressly and materially limiting the freedom of the Group Companies to compete with any person in a product line or line of business or to operate in any geographic area or solicit customers;
(xiii) Each Contract relating to any Financial Derivative/Hedging Arrangement;
(xiv) Each Contract under which any of the benefits thereunder, to any Person party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Transactions or the value of any of the benefits of which shall be calculated on the basis of any of the Transactions;
(xv) Each Contract to which any Insider of the Group Companies, or any entity owned or controlled by an Insider, is a party, excluding any employee benefit plan or other plans, programs, policies, commitments or arrangements that would constitute an employee benefit plan;
(xvi) Each settlement or coexistence agreement with respect to any pending or threatened action (A) entered into within twelve (12) months prior to the date of this Agreement, other than settlement agreements for cash only (which has been paid) that does not exceed $500,000 as to such settlement or (B) with respect to which unsatisfied amounts remain outstanding;
(xvii) Each Managed Services Agreement;
(xviii) Each obligation to register any Company Stock or other securities of the Company (or after the Reorganization, Newco) with any Governmental Entity;
(xix) Each document required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company (or after the Reorganization, Newco) as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company (or after the Reorganization, Newco) was the registrant; and
(xxx) Any written offer or proposal which, if accepted, would constitute any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Personsforegoing.
(b) Except for each All Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, Contracts are: (i) each Company Material Contract is in full force and effect effect, subject to the Remedies Exception; and represents a legal, (ii) represent the valid and binding obligation obligations of the applicable Group Company party thereto and, to the Knowledge of the CompanyCompany (and after the Reorganization, represents a legalNewco), represent the valid and binding obligation obligations of the counterparties thereto (subject in each case to the Enforcement Exceptions), (ii) neither the Company nor, to the Knowledge of the Company, any other party parties thereto, is in material breach of or in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACParent. None of the Group Companies nor, to the Knowledge of the Company (and after the Reorganization, Newco), any other party thereto, is in breach of or default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any of the Company Material Contracts, and no party to any Company Material Contract has given any written claim or notice of any such breach, default or event, which individually or in the aggregate, would be reasonably likely to be material to the Group Companies, taken as a whole.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 4.19(a4.18(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved or purchase commitment reasonably expected to result in future payments to or by any Group Company in excess of $1,000,000 (or its equivalent in another currency) per annum;
(ii) any Contract with the expenditure or receipt by top 10 customers of the Group Companies of more than $10,000,000 (the “Material Customers”) as determined by revenue, in the aggregate each case during the twelve (12) -month period ending ended on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021;
(iiiii) any Contract with the top 10 suppliers and vendors of the Group Companies (the “Material Suppliers”) based on amounts paid for goods during the twelve-month period ended on December 31, 2021;
(iv) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iiiv) any Contract memorializing any Interested Party Transactions (other than those employment agreements, confidentiality agreements, non-competition agreements (for the benefit of a Group Company) or any other agreement of similar nature entered into in the ordinary course of business with employees or technical consultants) providing for annual payments in an amount equal to or greater than $100,000 (or its equivalent in another currency) per annum;
(vi) 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;
(vii) 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;
(ivviii) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 200,000 (excluding or its equivalent in another currency) per annum (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Group Companies);
(vA) any employment or management Contract providing for annual payments in excess of $1,500,000100,000 (or its equivalent in another currency) or (B) any change in control, retention, sale bonus or similar Contract or arrangement;
(vix) each Contract that contains a put, call, any Contract: (A) providing for the grant of any preferential rights to purchase or lease any material asset of any Group Company; or (B) providing for any exclusive or preferred right to sell or distribute any material product or material service of first refusal, right any of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other PersonCompanies;
(viixi) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and or for which any Group Company has any material outstanding obligations in excess of $100,000 (or its equivalent in another currency) per annum (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiixii) any collective bargaining agreement, agreement or any other labor-related agreements or arrangements similar labor Contract with any labor union, labor organization, or works council;
(ixxiii) any material Contract for the use by any of the Group Companies of any tangible property where the annual lease or mandate payments are greater than $500,000 (or its equivalent in another currency) (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business);
(xiv) any Contract under which any of the Group Companies: (A) licenses obtains the right to use, or is granted rights a covenant not to use be sued under, any material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses grants the right to use, or grants rights a covenant not to use be sued under, any material Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business);
(xv) any Contract that creates guarantees or Liens of any nature on the Company’s assets not in the ordinary course of business and in an amount equal or greater than $200,000 (or its equivalent in another currency); and
(xxvi) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other PersonsPersons and in an amount equal or greater than $200,000 (or its equivalent in another currency).
(b) Except for each any Company Material Contract that has been terminated in accordance with the terms of this Agreement or will terminate terminates upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to haveDate, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable Group Company Company, New PubCo or Merger Sub party thereto and, to the Knowledge of the Company, New PubCo or Merger Sub, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions)availability of equitable remedies. None of the Company, (ii) neither the Company New PubCo or Merger Sub nor, to the Knowledge of the Company, New PubCo or Merger Sub, any other party theretothereto (as of the date hereof), is in material breach of or in material default under, and and, to the Knowledge of the Company, New PubCo or Merger Sub, no event has occurred which, as of the date hereof which with notice or lapse of time or both, both would become a material breach of or material default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such material breach, default or eventevent or has provided any formal written notice of any intention to terminate or modify, any such Company Material Contract. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
Appears in 1 contract
Sources: Business Combination Agreement (Rose Hill Acquisition Corp)
Agreements, Contracts and Commitments. (a) Section 4.19(a) of the The Company Disclosure Letter Schedule sets forth a truean accurate, correct and complete list of each Company all agreements, contracts, commitments, arrangements and understandings, written or oral, including all amendments and supplements thereto (collectively, the "Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this AgreementContracts"), “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group the Company is a party as or is bound, or by which any of its assets are bound, and which involve:
(a) any present or former employee or consultant or the employment of any person, including any consultant, which is not terminable at-will by the Company without liability to the Company;
(b) the future purchase of, or payment for, supplies or products, or the future performance of services by a third party involving in any one case $30,000 or more;
(c) the sale or supply of products or performance of services involving in any one case $30,000 or more;
(d) any requirements or "take or pay" provisions;
(e) any arrangement continuing over a period of more than six months from the date hereof or exceeding $30,000 in value;
(f) any distribution, dealer, representative or sales agency agreement, contract, commitment, arrangement or understanding;
(g) any lease under which the Company is either lessor or lessee;
(h) the indemnification of this Agreementany Person or the assumption of any Tax, in each case, environmental or other than any Employee Benefit Plan or Company Real Property Lease:Liability;
(i) each Contract that involved the expenditure any federal, state, local, regulatory or receipt by the Group Companies of more than $10,000,000 in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021other governmental entities;
(iij) any Contract that purports to limit in any material respect (A) note, debenture, bond, equipment trust agreement, letter of credit agreement, loan agreement or other contract or commitment for the localities in which the Group Companies’ businesses may be conducted, (B) any Group Company from engaging in any borrowing or lending of money or agreement or arrangement for a line of business credit or (C) any Group Company from developingguarantee, marketing pledge or selling products or services, including any non-compete agreements or agreements limiting undertaking of the ability indebtedness of any of the Group Companies from soliciting customers or employeesother person;
(iiik) any Contract that is related to the governance charitable or operation of any joint venture, partnership or similar arrangement, other than such contract solely between or among any of the Group Companiespolitical contribution;
(ivl) any Contract for capital expenditure or relating to any borrowing of money by or from the Company leasehold improvement in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies)30,000;
(vm) any employment restraint on the ability of the Company to engage or management Contract providing for annual payments compete in excess of $1,500,000any manner or in any business;
(vin) each Contract that contains a putany license, callfranchise, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock distributorship or other interests, assets agreement which relates in whole or business of in part to any other Person;
(vii) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viii) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; Right or (B) licenses or grants rights to use Company Third Party Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business)Right; and
(xo) any obligation to make any agreement, contract, commitment, arrangement or understanding that is otherwise material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date Company and except as has not had and would not reasonably be expected previously disclosed pursuant to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company 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 (subject in each case to the Enforcement Exceptions), (ii) neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACSection 3.15.
Appears in 1 contract
Sources: Merger Agreement (Freemarkets Inc)
Agreements, Contracts and Commitments. (a) Section 4.19(aSchedule 4.17(a) of the Company Best Assistant Disclosure Letter sets forth a true, correct and complete list of each Company eLMTree Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company eLMTree Material Contract” of the eLMTree Group Companies shall mean each of the following Contracts to which a an eLMTree Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved or purchase commitment reasonably expected to result in future payments to or by any eLMTree Group Company in excess of $10,000,000 per annum;
(ii) (x) any Contract with the expenditure or receipt by top 10 customers of the eLMTree Group Companies (the “eLMTree Material Customers”) as determined by revenue and (y) top 10 suppliers and distributors of more the eLMTree Group Companies by amounts payables (the “eLMTree Material Suppliers”) (all, other than $10,000,000 purchase or service orders accepted, confirmed or entered into in the aggregate ordinary course of business or with professional advisors), in each case during the twelve (12) -month period ending ended on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 20212022;
(iiiii) any Contract that purports to limit in any material respect (A) the localities in which the eLMTree Group Companies’ businesses may be conducted, (B) any eLMTree Group Company from engaging in any line of business or (C) any eLMTree Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the eLMTree Group Companies from soliciting customers or employees;
(iiiiv) any Contract that is related to the governance or operation of any joint ventureventure or partnership that has involved a sharing of revenues, partnership profits, cash flows, expenses or similar arrangementlosses with any other party or a payment of royalties to any other party, other than such contract Contract solely between or among any of the eLMTree Group Companies;
(ivv) any Contract for or relating to any borrowing of money by or from any of the Company eLMTree Group Companies in excess of $100,000,000 10,000,000, including the eLMTree Existing Credit Agreement (excluding excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the eLMTree Group Companies);
(vvi) any employment or management Contract (other than those made in the ordinary course of business): (A) providing for annual payments in excess the grant of $1,500,000;
(vi) each Contract that contains a putany rights of refusal, call, right rights of first negotiation, most-favored-nation or similar rights to purchase or lease any asset of the eLMTree Group Companies; or (B) providing for any exclusive rights, rights of refusal, right rights of first offer negotiation, most-favored-nation or similar right pursuant rights to which the Group Companies would be required to, directly sell or indirectly, purchase distribute any product or sell, as applicable, any securities, capital stock or other interests, assets or business service of any other Personof the eLMTree Group Companies;
(vii) any obligation to register any eLMTree Ordinary Shares or other securities of the eLMTree Group Companies with any Governmental Entity (other than ordinary course requirements of foreign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. eLMTree Group Companies);
(viii) any Contracts relating to the sale of any operating business of any eLMTree Group Company or the acquisition by any eLMTree Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 5,000,000 and for which any eLMTree Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiiix) any labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ixx) any material Contract for the use by any of the eLMTree Group Companies of any tangible property where the annual lease payments are greater than $5,000,000 (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material eLMTree Real Property Leases”);
(xi) any Contract under which any of the an eLMTree Group CompaniesCompany: (A) licenses or is granted rights a license, option or covenant not to use material sue under any Intellectual Property from any third party (“Inbound License”)party, other than Incidental Inbound LicensesLicenses or licenses for Open Source Software; or (B) licenses grants a license, option or grants rights covenant not to use Intellectual Property sue to or under any eLMTree Owned IP to any third party (party, other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to employees, contractors, suppliers, vendors, distributors or customers in the ordinary course of business;
(xii) any Contract involving any resolution or settlement of any actual or threatened Legal Proceeding that is material to the eLMTree Group Companies or their businesses or that imposes material non-monetary obligations on an eLMTree Group Company;
(xiii) any Contract relating to the development of material Intellectual Property by, with or for the eLMTree Group Companies (other than Contracts entered into with employees and independent contractors in the ordinary course of business); and
(xxiv) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Each eLMTree Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable eLMTree Group Company party thereto and, to the Knowledge of the CompanyBest Assistant, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions), (ii) neither availability of equitable remedies. Neither the applicable eLMTree Group Company nor, to the Knowledge of the CompanyBest Assistant, any other party thereto, is in material breach of or in default under, and no event has occurred which, which with notice or lapse of time or both, both would reasonably be expected to become a material breach of or default under, any Company eLMTree Material Contract, and (iii) as of the date of this Agreement, no party to any Company eLMTree Material Contract has given any written notice of any claim of any such breach, default or event. True, correct and complete copies of all Company eLMTree Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACG▇▇▇.
Appears in 1 contract
Sources: Merger Agreement (Gravitas Education Holdings, Inc.)
Agreements, Contracts and Commitments. (a) Section 4.19(a4.20(a) of the Company Disclosure Letter Schedule sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved the expenditure (or receipt group of related Contracts (other than non-continuing purchase orders)) or purchase commitment reasonably expected to result in future payments to or by the any Group Companies Company in excess of more than $10,000,000 2,500,000 (or its equivalent in the aggregate during the twelve (12another currency) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021per annum;
(ii) any Contract that purports to limit in any material respect (A) the localities location or market in which the Group Companies’ businesses may be conductedconducted or products or services may be marketed or sold, (B) any Group Company from engaging in any line of business or (C) any Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employees;
(iii) any Contract that purports to limit the Persons that any Group Company may hire or solicit to hire;
(iv) any Contract memorializing any Interested-Party Transactions (other than standard employment agreements, confidentiality agreements, non-competition agreements (for the benefit of a Group Company) or any other agreement of similar nature entered into in the ordinary course of business with employees or technical consultants) providing for annual payments in an amount equal to or greater than $100,000 (or its equivalent in another currency) per annum;
(v) 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;
(vi) 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;
(ivvii) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 1,000,000 (excluding or its equivalent in another currency) per annum (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Group Companies);
(vviii) (A) any employment employment, consulting or management Contract providing for annual payments in excess of $1,500,000250,000 (or its equivalent in another currency) or (B) any change in control payment, transaction bonus, retention bonus, sale bonus, stay and pay or similar Contract or arrangement, in each case of clauses (A) and (B), with any current or former (to the extent of any ongoing liability) employee or individual service provider of any Group Company;
(viix) each Contract that contains a put, call, any Contract: (A) providing for the grant of any preferential rights to purchase or lease any material asset of any Group Company or (B) providing for any exclusive or preferred right to sell or distribute any material product or material service of first refusal, right any of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other PersonCompanies;
(viix) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and or for which any Group Company has any material outstanding obligations in excess of $1,000,000 (or its equivalent in another currency) per annum (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiixi) any collective bargaining agreement, agreement or any other labor-related agreements or arrangements similar labor Contract with any labor union, labor organization, or works council;
(ixxii) any material Contract for the use by any of the Group Companies of any tangible property where the annual lease or mandate payments are greater than $100,000 (or its equivalent in another currency) (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business);
(xiii) any Contract under which any of the Group Companies: (A) licenses obtains the right to use, or is granted rights a covenant not to use material be sued under, any Intellectual Property or IT Systems from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses contains any assignment or grants rights the right to use use, or a covenant not to assert or enforce or be sued under, any other right in or to Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business);
(xiv) any Contract that creates guarantees or Liens of any nature on the Company’s assets not in the ordinary course of business and in an amount equal or greater than $500,000 (or its equivalent in another currency); and
(xxv) any obligation outstanding written commitment to make enter into any material payments, contingent or otherwise, arising out Contract of the prior acquisition type described in subsections (i) through (xiv) of the business, assets or stock of other Personsthis Section 4.20(a).
(b) True, correct and complete copies of the Company Material Contracts have been made available to SPAC, together with all amendments and supplements thereto. Except for each any Company Material Contract that has been terminated in accordance with the terms of this Agreement or will terminate terminates upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to haveDate, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable Group Company Company, New PubCo or Merger Sub party thereto and, to the Knowledge of the Company, represents a legal, valid and binding obligation of the counterparties thereto (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting the Enforcement Exceptions)enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies. None of the Company, (ii) neither the Company New PubCo or Merger Sub nor, to the Knowledge of the Company, any other party theretothereto (as of the date hereof), is in material breach of or in material default under, and and, to the Knowledge of the Company, no event has occurred which, as of the date hereof which with notice or lapse of time or both, both would become a material breach of or material default under, any Company Material Contract, and (iii) as of the date of this Agreement, no party to any Company Material Contract has given any written notice of any claim in writing of any such material breach, default or event. Trueevent or has provided any formal written notice of any intention to terminate or modify, correct and complete copies of all any such Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPACContract.
Appears in 1 contract
Sources: Business Combination Agreement (Mercato Partners Acquisition Corp)
Agreements, Contracts and Commitments. (a) Section 4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each has identified to the Parent the following Company Material Contract (as defined below) that is Contracts in effect as of the date of this Agreement. For purposes of this AgreementAgreement (each, a “Company Material Contract” of and collectively, the Group Companies shall mean each of the following Contracts to which a Group “Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Lease:Material Contracts”):
(i) each Company Contract that involved the expenditure relating to any agreement of indemnification or receipt by the Group Companies of more than $10,000,000 guaranty not entered into in the aggregate during the twelve (12) month period ending on December 31, 2020 or would involve the expenditure or receipt by Group Companies Ordinary Course of more than $10,000,000 in the aggregate in the twelve (12) month period ending December 31, 2021Business;
(ii) any each Company Contract that purports to limit in any material respect containing (A) any covenant limiting the localities in which freedom of the Group Companies’ businesses may be conducted, (B) any Group Company from engaging or the Post-Acquisition 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 pricing arrangement, (C) any Group Company from developing, marketing exclusivity provision or selling products or services, including (D) any non-compete agreements or agreements limiting the ability of any of the Group Companies from soliciting customers or employeessolicitation provision;
(iii) each Company Contract (A) pursuant to which any Contract that is related Person granted the Company an exclusive license under any Intellectual Property, or (B) pursuant to which the governance or operation of Company granted any joint venture, partnership or similar arrangement, other than such contract solely between or among Person an exclusive license under any of the Group CompaniesCompany IP Rights;
(iv) any each Company Contract for or relating to any borrowing capital expenditures and requiring payments after the date of money by or from the Company this Agreement in excess of $100,000,000 (excluding any intercompany arrangements solely between or among any of the Group Companies)1,000,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract containing any employment royalty, dividend or management Contract providing for annual payments in excess similar arrangement based on the revenues or profits of $1,500,000the Company, any of its Subsidiaries, or of a product;
(vi) each Company Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(vii) any Contracts relating to the sale disposition or acquisition of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or material assets or otherwiseany ownership interest in any Entity, in each case case, involving consideration therefor in an amount payments in excess of $20,000,000 and for which any Group Company has any material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viii) any collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization, or works council;
(ix) any material Contract under which any of the Group Companies: (A) licenses or is granted rights to use material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) licenses or grants rights to use Intellectual Property to any third party (other than (1) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into in the ordinary course of business whereby any of the Group Companies provides another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of business); and
(x) any obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons.
(b) Except for each Company Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company 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 (subject in each case to the Enforcement Exceptions), (ii) neither the Company nor, to the Knowledge of the Company, any other party thereto, is in material breach of or in default under, and no event has occurred which, with notice or lapse of time or both, would become a material breach of or default under, any Company Material Contract, and (iii) as of 1,000,000 after the date of this Agreement, no party ; (vii) 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 $1,000,000 or creating any material Encumbrances with respect to any assets of the Company Material Contract has given or any written notice loans or debt obligations with officers or directors of any claim of any such breach, default or event. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.the Company;
Appears in 1 contract
Sources: Acquisition Agreement (MingZhu Logistics Holdings LTD)
Agreements, Contracts and Commitments. (a) Section 4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Group Companies shall mean each of the following Contracts to which a Group Company is a party as of the date of this Agreement, in each case, other than any Employee Benefit Plan or Company Real Property Leasehereof:
(i) each any Contract that involved or purchase commitment reasonably expected to result in future payments to or by any Group Company in excess of $500,000 (or its equivalent in another currency) per annum;
(ii) any Contract with the expenditure or receipt by top 10 customers of the Group Companies of more than $10,000,000 (the “Material Customers”) as determined by revenue, in the aggregate each case during the twelve (12) -month period ending ended on December 31, 2020 or would involve 2022;
(iii) any Contract with the expenditure or receipt by top 10 suppliers and vendors of the Group Companies of more than $10,000,000 in (the aggregate in “Material Suppliers”) based on amounts paid for goods during the twelve (12) twelve-month period ending ended on December 31, 20212022;
(iiiv) any Contract that purports to limit in any material respect (A) the localities in which the Group Companies’ businesses may be 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, including any business non-compete agreements;
(v) any Contract memorializing any Interested Party Transactions (other than those employment agreements, confidentiality agreements, non-competition agreements (for the benefit of a Group Company) or agreements limiting any other agreement of similar nature entered into in the ability ordinary course of business with employees or technical consultants) providing for annual payments in an amount equal to or greater than $250,000 (or its equivalent in another currency) per annum;
(vi) any Contract that imposes material obligations on any of the Group Companies from soliciting customers to provide “most favored nation” pricing to any of its customers, or employeesthat 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;
(iiivii) 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;
(ivviii) any Contract for or relating to any borrowing of money by or from the Company in excess of $100,000,000 500,000 (excluding or its equivalent in another currency) per annum (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Group Companies);
(vix) any employment or management Contract Contract: (A) providing for annual payments in excess the grant of $1,500,000any preferential rights to purchase or lease any material asset of any Group Company; or (B) providing for any exclusive or preferred right to sell or distribute any material product or material service of any of the Group Companies;
(vi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Group Companies would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;
(viix) any Contracts relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case involving consideration therefor in an amount in excess of $20,000,000 and for which any Group Company has any material outstanding obligations in excess of $100,000 (or its equivalent in another currency) per annum (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(viiixi) any collective bargaining agreement, agreement or any other labor-related agreements or arrangements similar labor Contract with any labor union, labor organization, or works council;
(ixxii) any material Contract for the use by any of the Group Companies of any tangible property where the annual lease or mandate payments are greater than $500,000 (or its equivalent in another currency) (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business);
(xiii) any Contract under which any of the Group Companies: (A) licenses obtains the right to use, or is granted rights a covenant not to use material be sued under, any Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; ) or (B) licenses grants the right to use, or grants rights a covenant not to use be sued under, any Owned Intellectual Property to any third party (other than Incidental Outbound Licenses);
(1xiv) non-disclosure or confidentiality agreements or any other Contract that includes confidentiality provisions entered into creates guarantees or Liens of any nature on the Company’s assets not in the ordinary course of business whereby any of the Group Companies provides and in an amount equal or greater than $500,000 (or its equivalent in another Person a limited, non-exclusive right to access or use Trade Secrets and (2) other non-exclusive licenses granted to suppliers, vendors, distributors or customers in the ordinary course of businesscurrency); and
(xxv) any ongoing obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other PersonsPersons and in an amount equal or greater than $200,000 (or its equivalent in another currency).
(b) Except for each any Company Material Contract that has been terminated in accordance with the terms of this Agreement or will terminate terminates upon the expiration of the stated term thereof prior to the Closing Date and except as has not had and would not reasonably be expected to haveto, individually or in the aggregate, be material to the Group Companies taken as a Company Material Adverse Effectwhole, (i) each Company 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 (subject in each case to thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the Enforcement Exceptions), (ii) neither availability of equitable remedies. Neither the Company nor, to the Knowledge of the Company, any other party theretothereto (as of the date hereof), is in material breach of or in default under, and and, to the Knowledge of the Company, no event has occurred which, as of the date hereof which with notice or lapse of time or both, both would become a material breach of or default under, any Company Material Contract, other than such breach, default or event which would not be reasonably expected to be material to the Group Companies taken as a whole and (iii) as to the Knowledge of the date of this AgreementCompany, no party to any Company Material Contract has given any written notice in the last 12 months of any claim of any such breach, default or event, or has provided in the last 12 months any formal written notice of any intention to terminate or materially modify, any such Company Material Contract. True, correct and complete copies of all Company Material Contracts (other than Incidental Inbound Licenses) have been made available to SPAC.
(c) No Group Company has received any written or, to the Knowledge of the Company, oral notice that any Material Customer or Material Supplier intends to cease doing business with any Group Company or materially decrease the volume of business that it is presently conducting with any Group Company.
Appears in 1 contract
Sources: Business Combination Agreement (Jaguar Global Growth Corp I)