Contracts and Commitments. (a) As of the date of this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any: (i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement; (ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees; (iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement; (iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements; (v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries; (vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period; (vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries; (viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement; (ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000; (x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries; (xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand; (xii) Company Real Property lease; (xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year; (xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or (xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv). (b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract. (c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Quanterix Corp), Merger Agreement (Akoya Biosciences, Inc.), Merger Agreement (Akoya Biosciences, Inc.)
Contracts and Commitments. (a) As of the date of this Agreement, none except as set forth on Section 3.13 of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiaries; provided, however, that was required any “material contract” that has been made publicly available pursuant to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after or included on Section 3.17 of the date Company Disclosure Letter will be excluded from Section 3.13 of filing of such Form 10-K until the date of this AgreementCompany Disclosure Letter;
(ii) collective bargaining agreement Contract relating to the disposition, transfer or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which acquisition by the Company or any of its Subsidiaries obtains of any material tangible or intangible assets (or ownership interest in any other Person or other business enterprise) (A) after the services date of temporary this Agreement, other than the sale of inventory in the ordinary course of business, or leased employees(B) prior to the date of this Agreement, that contains any material ongoing obligations of the Company (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are expected to result in claims in excess of $100,000;
(iii) Contract relating to the acquisition establishing any joint venture, partnership or disposition of any product line, business or material asset of the Company or any of its Subsidiariescollaboration, in each case, with obligations remaining that is material to be performed or Liabilities continuing after the date of this AgreementCompany and its Subsidiaries, taken as a whole;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(v) Contract in respect of Indebtedness of $500,000 or more, (D) containing other than any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted Indebtedness owed by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right Subsidiary to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesother Subsidiary;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Softwarea Company Plan) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities, or any stockholders’, investor rights, tax receivables or similar or related Contracts with respect to any securities of the Company or any of its Subsidiaries;
(viii) Contract containing a right of first refusal, right of first negotiation, right of first offer, option or other similar rights with respect to any equity interests or assets that have a fair market value or purchase price of more than $50,000 in favor of a party other than the Company or its Subsidiaries;
(ix) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $500,000 during the current or a subsequent fiscal year;
(x) Contract relating to the settlement of any litigation proceeding that provides for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xi) Contract that prohibits, limits, restricts or requires the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibits, limits, restricts or requires the pledging of capital stock of the Company or any of its Subsidiaries or prohibits, limits, restricts or requires the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xii) Contract with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Company Real Property leaseProducts that involve payments in excess of $500,000 during the current or a subsequent fiscal year;
(xiii) Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, extension of credit or capital contribution to, or other investment in, any Person that is not a Subsidiary of the Company (other than extensions of credit to customers in the ordinary course of business and advances to directors, officers and other employees for travel and other business-related expenses, in each case, in the Company’s Subsidiaries made annual expenditures or received annual revenues in excess ordinary course of $500,000 during the 2024 fiscal yearbusiness);
(xiv) Contract between with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Shares, or to the Knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Contracts pursuant to Company Equity Awards);
(xv) Labor Agreement;
(xvi) any employment or consulting Contract (in each case with respect to which the Company or any of its Subsidiaries has continuing obligations as of the date hereof) with any current or former (A) officer of the Company’s Subsidiaries, on (B) member of the one handCompany Board, and any Governmental Bodyor (C) employee, on individual independent contractor, or individual consultant of the other hand, other than any such Contracts the primary purpose Company providing for an annual base salary or payment in excess of which is the sale of any Products or Services to such Governmental Body$250,000;
(xvii) IP Contracts; or
(xvxviii) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xviii) above of this Section 3.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease listed in Section 3.11(b) of the Company Disclosure Letter, or would otherwise have been required to be set forth on Section 3.13(a) of the Company Disclosure Letter if such Contract had been entered into on or prior to the date hereof other than any Company Plan, is referred to herein as a “Company Material Contract.”
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all material amendments thereof and waivers thereunderthereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would not, individually or in the aggregate, not reasonably be expected to be material to the Company and its Subsidiaries, Subsidiaries (taken as a whole), (i) neither the Company is not nor any of its Subsidiaries (and A) is, or has sent or received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no No party to any Company Material Contract has given any written noticenotice of termination, cancellation or breach of, or to the knowledge of the Companydispute with respect to, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate terminate, modify, renegotiate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 3 contracts
Sources: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Contracts and Commitments. (a) As of the date of this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31June 30, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) Contract (A) relating to the disposition, transfer or acquisition by the Company or any of its Subsidiaries of any material tangible or intangible assets (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) prior to the date of this Agreement, that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations) that are still in effect that are expected to result in claims in excess of $250,000 or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than the Company’s Subsidiaries;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with body (other than any statutorily mandated agreement in a thirdnon-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdiction);
(iv) Contract establishing any joint venturesventure, partnershipspartnership, profit sharesor collaboration, in each case, that is material collaborations or similar arrangementsto the Company and its Subsidiaries, taken as a whole;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, party (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nations” basis with any third party, or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract Contracts in respect of Indebtedness of $250,000 or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditmore, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-wholly owned Subsidiariessubsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiariesconsistent with past practice;
(xivii) Contract (other than a Company Plan) between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xiiviii) Contract relating to the voting or registration of any securities, or any stockholders’, investor rights, tax receivables or similar or related Contracts with respect to any securities of the Company Real Property leaseor any of its Subsidiaries;
(xiiiix) Contract containing a right of first refusal, right of first negotiation or right of first offer, option or other similar rights with respect to (i) any equity interests of any Subsidiaries or (ii) assets that, in the case of this clause (ii), have a fair market value or purchase price of more than $500,000, in each case in favor of a party other than the Company or its Subsidiaries;
(x) Contract under which the Company and the Company’s or any of its Subsidiaries made is expected to make annual expenditures or received receive annual revenues in excess of $500,000 during the 2024 current or a subsequent fiscal year, including any Contract with a Top Customer or Top Supplier;
(xi) Corporate integrity agreements, consent decrees, deferred prosecution agreements, or other similar types of agreements with Governmental Bodies that have existing or contingent performance obligations;
(xii) Contracts relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xiii) Contracts that prohibit, limit, require or restrict the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit, require or restrict the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit, require or restrict the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiv) Contract between Contracts with third party manufacturers and suppliers for the Company manufacture and/or supply of materials or any products that involve payments in excess of $500,000 during the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products current or Services to such Governmental Bodya subsequent fiscal year; or
(xv) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xv) above of this Section 3.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Lease listed in Section 3.11(b) of the Company Disclosure Letter but excluding, in all cases, each Company Plan, is referred to herein as a “Company Material Contract.”
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all material amendments thereof and waivers thereunderthereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would not, individually or in the aggregate, not reasonably be expected to be material to have a Company Material Adverse Effect, neither the Company and nor any of its SubsidiariesSubsidiaries (A) is, taken as a wholeor has sent or received written notice that any other party to any Company Material Contract is, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written noticenotice of termination, cancellation or breach of, or to the knowledge of the Companydispute with respect to, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Contracts and Commitments. (a) As of Except as disclosed in the Company Reports filed since December 31, 2009 and prior to the date hereof, the Company is not a party to, are not bound or affected by, and does not receive any benefits under, any agreement, contract or legally binding understanding, whether oral or written: (i) providing for (A) aggregate noncontingent payments by or to the Company in excess of this Agreement, none $125,000 or (B) potential payments by or to the Company reasonably expected to exceed $250,000; (ii) limiting the freedom of the Company to engage in any line of business or sell, supply or distribute any service or product, or to compete with any entity or to conduct business in any geography, or to hire any individual or group of individuals; (iii) that after the Effective Time would have the effect of limiting in any respect the freedom of Parent or any of its Subsidiaries is a party to engage in any line of business or bound by any:
sell, supply or distribute any service or product, or to compete with any entity or to conduct business in any geography, or to hire any individual or group of individuals; (iiv) “material providing for any joint venture, partnership or similar arrangement (other than research collaborations and license agreements); (v) involving any exchange-traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after other interest-rate or foreign currency protection contract; (vi) relating to the date borrowing of filing money, the guarantee of any such Form 10-K until obligation (other than trade payables and instruments relating to transactions entered into in the date ordinary course of this Agreement;
business), or the sale, securitization or servicing of loans or loan portfolios; (iivii) collective bargaining agreement or Contract with any labor uniondirectors, trade organization, works council officers or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which stockholders that cannot be terminated with canceled by the Company within thirty (30) days’ notice without Liability; (viii) containing severance or lesstermination pay Liabilities related to termination of employment; (ix) related to product supply, under which manufacturing, distribution or development, or the Company or any license of its Subsidiaries obtains Intellectual Property, used in the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company as currently conducted by the Company, to or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after from the date of this Agreement;
Company (iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract except for (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical areastandard biological material transfer agreements, (B) obligating standard licenses purchased by the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single partyfor generally available commercial software, and (C) under agreements, contracts or understandings in which either the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable aggregate noncontingent payments to or by the Company are not in excess of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant 125,000 or the potential payment to which or by the Company is not expected to exceed $250,000); (x) providing for any standstill restriction on the Company; (xi) providing for the disposition of an asset through licensing or any otherwise involving consideration to the Company in excess of its Subsidiaries (A) licenses any Intellectual Property $50,000 (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payablesconsistent with prior practice); (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
relating to any employee collective bargaining agreement or other contract with a labor union; or (xiii) Contract otherwise required to be filed as an exhibit to an Annual Report on Form 10-K, as provided by Rule 601 of Regulation S-K promulgated under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract Exchange Act. Each contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available this Section 3.16 is referred to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except herein as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts.”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (Emergent BioSolutions Inc.), Merger Agreement (Trubion Pharmaceuticals, Inc)
Contracts and Commitments. (a) As of the date of this Agreement, none hereof and except as set forth in Section 4.14(a) of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiaries, taken as a whole, that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition, directly or indirectly (by merger, sale of stock, sale of assets, or otherwise), by the Company or any of its Subsidiaries of any material assets (other than cash) or any material equity interests in any Person (other than any Subsidiary of the Company), other than the sale of inventory in the ordinary course of business consistent with past practice, which contains any material ongoing financial obligations, indemnification, “earn-out” or milestone payments or other contingent payment that are still in effect that are reasonably likely to result in claims in excess of $3,000,000 after the date hereof or (B) pursuant to which the Company or any of its Subsidiaries will acquire or dispose of any equity interest in any other Person other than the Company’s Subsidiaries in excess of $3,000,000;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) any material partnership, joint venture, limited liability company agreement or similar Contract establishing relating to the formation, creation, operation, management or control of any joint ventures, partnerships, profit sharesco-development, material co-promotion, collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting in any material respect the right of the Company or any of its Subsidiaries (1) to compete in any line of business or (2) to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party party, or sell any product or service exclusively to a single party, or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product or service of the Company or its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(vi) Contract with each customer and supplier required to be listed on Section 4.23(a) of the Company Disclosure Letter;
(vii) any employment or consulting agreement with any current (A) executive officer of the Company or any of its Subsidiaries, (B) member of the Company Board, or (C) employee of the Company or any of its Subsidiaries, in each casecase earning an annual base salary or payment in excess of $150,000 (if performing services in the United States) or in excess of the local equivalent of $250,000 (if performing services outside the United States), other than those that are terminable by the Company or any such Subsidiary on without advance notice and without Liability to the Company and its Subsidiaries;
(viii) Contract that requires by its terms the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an exclusive basis amount having an expected value in excess of $10,000,000 in the current or any geographical areasubsequent fiscal year, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted which cannot be cancelled by the Company or any of its Subsidiaries, as applicable, without penalty or further payment without more than ninety (90) days’ notice (other than payments for services rendered to the date), excluding indebtedness and commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements entered into in the ordinary course of business, material transfer agreements, services agreements, clinical trial agreements and non-exclusive outbound licenses entered into in the ordinary course of business;
(ix) (A) any mortgages, indentures, guarantees, loans or credit agreements or other Contracts, in each case relating to outstanding indebtedness for borrowed money of the Company or any Subsidiary thereof having an aggregate principal (or committed amount) of $5,000,000 or more, other than intercompany indebtedness to or among the Company and its Subsidiaries or among any of its Subsidiaries or (EB) grants any rights Contracts governing the terms of first refusalthe Company Warrants, right other than those enumerated in the definitions of first offerCompany ▇▇▇▇ ▇▇▇▇▇▇▇ Confirmations or Company 2025 Warrant Confirmations;
(x) Contract under which the Company or any of its Subsidiaries are expected to make annual capital expenditures in excess of $20,000,000 during the current or subsequent fiscal year;
(xi) Contract under which the Company or any of its Subsidiaries are expected to receive annual revenues in excess of $10,000,000 during the current or subsequent fiscal year;
(xii) Settlement agreement, right or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of negotiation agreement with or similar right imposed by any Governmental Body, in each case that has existing or contingent material performance obligations;
(xiii) Contract of the Company or any of its Subsidiaries relating to acquire rights or ownership with respect to the settlement of any Action that provides for any continuing material assets or business Liabilities on the part of the Company or any of its Subsidiaries;, which will involve payments after the date hereof of consideration in excess of $5,000,000; or
(vixiv) Contract of the Company or any of its Subsidiaries that prohibits, materially limits or materially restricts the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or prohibits, materially limits or materially restricts the pledging of capital stock of the Company or any of its Subsidiaries. Each such Contract described in clauses (i) through (xiv) of this Section 4.14(a), together with each Company Real Property Lease, is referred to herein as a “Company Material Contract.”
(b) Parent has been given access to a true, correct and complete copy as of the date hereof of all written Company Material Contracts, together with all amendments, waivers or other changes thereto.
(c) Except as would not have a Company Material Adverse Effect: (i) none of the Company or any of its Subsidiaries (A) is, or has received written notice that any Third Party Component to any Company Material Contract is, in violation or breach of or default (Bwith or without notice or lapse of time or both) other Contract relating under any Company Material Contract, (ii) to the researchCompany’s Knowledge, testingthere has occurred no event giving to any Third Party any right of termination, developmentamendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contract and (iii) each such Company Material Contract is in full force and effect and is a legal, commercializationvalid and binding agreement of, manufacture or supply of any Product of and enforceable against, the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing Knowledge of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on each other party thereto, except as enforcement may be limited by the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Enforceability Exceptions. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as not have a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledgeAdverse Effect, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreementhereof, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Globus Medical Inc), Merger Agreement (Nuvasive Inc)
Contracts and Commitments. (a) As of the date of Except as expressly contemplated by this AgreementAgreement or as set forth in Schedule 7.10(a), none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K Contract for the fiscal year ended December 31employment of any officer, 2023individual employee or other Person or Contract relating to loans to officers, directors or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementAffiliates;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted advanced, loaned or extended credit to any other Person amounts that in the aggregate exceed Ten Thousand Dollars and 00/100 ($10,000.00);
(iii) Contract that provides for, or group of Persons relates to, the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted incurrence by the Company or any of its SubsidiariesSubsidiaries of debt for borrowed money, other Indebtedness or (E) grants any rights of first refusalthe mortgaging, right of first offer, right of negotiation pledging or similar right to acquire rights or ownership with respect to otherwise placing a Lien on any material asset or material group of assets or business of the Company or any of its Subsidiaries;
(viiv) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply that provides for a guarantee of any Product obligation of the Company any Person or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which provides that the Company or any of its Subsidiaries (A) licenses must assume or become liable for any Intellectual Property (other than commercially available off-the-shelf Software) from another Indebtedness of any Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viiiv) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as is lessee of the date of this Agreement)or holds or operates any property, real or personal, owned by any other than Person;
(Avi) any guaranty by Contract under which the Company of or any of its Subsidiaries’ obligations Subsidiaries is lessor of or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental permits any third party to the transaction contemplated in hold or operate any Contractproperty, the commercial purpose of which is primarily for something other than such indemnification obligationsreal or personal, and which indemnification obligations are not material to the business of owned or controlled by the Company or any of its Subsidiaries;
(xivii) Contract between the Companyassignment, on the one handlicense, and indemnification or agreement with respect to any Affiliate of the Company intangible property (other than a Subsidiary of the Companyincluding any Intellectual Property Rights), on the other hand;
(xiiviii) Company Real Property leasesales, distribution or franchise Contract;
(xiiiix) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company that is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than terminable by the Company or any of its Subsidiaries upon less than thirty (30) days notice without penalty and that involves consideration in excess of Twenty Five Thousand Dollars and 00/100 ($25,000.00) in any twelve (12) month period;
(x) Contract that prohibits the Company or any of its Subsidiaries from freely engaging in any business or competing anywhere in the world; or
(xi) any other Contract that is material to each the Company’s or any of its Subsidiaries’ operations or business prospects as currently contemplated.
(b) Each of the Contracts listed in Schedule 7.10(a) (collectively, the “Material Contracts”) constitutes a valid and binding obligation of the Company Material Contracts or, if applicable, one of its Subsidiaries and, to the Knowledge of the Company, of each other party thereto and is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid(except for those Material Contracts that by their terms will expire prior to the applicable Closing Date or are otherwise terminated prior to the applicable Closing Date in accordance with the provisions hereof) will continue in full force and effect after the Closings, binding in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder and enforceable against without the consent, approval or act of, or the making of any filing with, any other party. The Company and, if applicable, its Subsidiaries, have fulfilled and performed their material obligations under each Material Contract, and neither the Company and nor any of its Subsidiaries (is in, or alleged to be in, default under or breach of, nor is there or is there alleged to be any basis for termination of, any Material Contract, and to the extent Knowledge of the Company no other party thereto) andto any of the Material Contracts has breached or defaulted thereunder, and no event has occurred and no condition or state of facts exists that, with the passage of time or the giving of notice or both, would constitute such a default or breach by the Company, any of its Subsidiaries or, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge Knowledge of the Company, by any notice (whether such other party. Neither the Company nor any of its Subsidiaries has any present expectation or intention of not written) of termination or cancellation fully performing all its obligations under each Material Contract, and the Company does not have Knowledge of any Company anticipated breach by any other party to any Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Contract.
Appears in 2 contracts
Sources: Series D Preferred Stock Purchase Agreement (Xstream Systems Inc), Series D Preferred Stock Purchase Agreement (Xstream Systems Inc)
Contracts and Commitments. (a) As Except as set forth in Section 4.10 of the Company Disclosure Schedule (each such Contract in effect as of the date hereof, along with each of this Agreement, none the Leases required to be listed on Section 4.8(d) of the Company or any Disclosure Schedule, and each Benefit Plan required to be listed on Section 4.17 of its Subsidiaries the Company Disclosure Schedule, a “Material Contract” and, collectively, the “Material Contracts”), as of the date hereof, no Group Company is a party to or is bound by by, and no Group Company’s assets or properties are subject to, any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation SContract creating a partnership, limited liability company, joint venture, strategic alliance, collaboration, co-K of the SEC) with respect to the Company promotion, profit or any of its Subsidiaries that was required to berevenue sharing, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023research or development project, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementsimilar Contract;
(ii) collective bargaining Contract providing for the grant of any preferential rights to purchase or lease any of the assets of any Group Company;
(iii) Contract for capital expenditures or the acquisition of fixed assets, in each case in excess of $200,000;
(iv) Any equityholders, voting, investors rights, registration rights or similar agreement or arrangement;
(v) Contract with (A) that contains a non-solicit or a non-competition provision relating to the business of any labor unionGroup Company (or, trade organizationat any time after the consummation of the Closing, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company Parent or any of its Subsidiaries obtains Affiliates) or any other Contract restricting the services right of temporary any Group Company’s employees or leased employeesindependent contractors (or, at any time after the consummation of the Closing, Parent or any of its Affiliates) to conduct business at any time, in any manner or at any place in the world, or the expansion thereof to other geographical areas or lines of business, (B) that grants to the other party or any third Person “most favored nation” status, or (C) that grants to the other party or any third party any exclusive right or rights or in which any third party grants any Group Company any exclusive right or rights;
(iiivi) Contract relating to the acquisition or disposition of any product linebusiness, business stock or material asset assets of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any other Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month periodreal property;
(vii) Contract pursuant to which imposing any restriction or limitation on the sale or other transfer of the Company Interests or of any of its Subsidiaries (A) licenses the assets of any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its SubsidiariesGroup Company;
(viii) Contract pursuant to which involving the Company or settlement of any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this AgreementAction;
(ix) mortgagesContract for the employment of any officer, indenturesindividual employee, guaranteesindependent contractor, loans or credit agreements, security agreements or other Contracts relating to Person on a full-time, part-time, or consulting basis providing for fixed compensation in excess of $125,000 per annum or which provides for the borrowing payment of money any change in control, retention, severance or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000similar benefits;
(x) Contract providing for that requires any guaranty by the Group Company or any of to purchase its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company total requirements of any of its Subsidiaries’ obligations product or (B) contractual indemnification obligations made in the ordinary course of business and service from a third party or that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company contains “take or any of its Subsidiariespay” provisions;
(xi) Contract that provides for the assumption of any Tax, environmental or other Liability of any Person;
(xii) Contract pursuant to which any Person acts as a broker, distributor, manufacturer’s representative, sales representative or agent of any Group Company;
(xiii) Contract with any Government Authority (each, a “Government Contract”);
(xiv) Contract between the Company, or among any Group Company on the one hand, hand and any Affiliate of the Key Person, Company Member or any Insider relating to any Key Person or Company Member (other than a Subsidiary of the any Group Company), ) on the other hand;
(xiixv) Company Real Property leaseContract relating to any equity purchase, equity rights or similar plan;
(xiiixvi) Contract (excluding (A) licenses for commercial off the shelf computer Software that are generally available on nondiscriminatory pricing terms, (B) service Contracts related to pre-clinical or clinical development of any medicine to the extent the licenses contained therein are incidental to such Contracts, non-exclusive and granted in the Ordinary Course), (C) except for implied licenses incidental to the sale of products, and (D) any licenses for Intellectual Property that are granted as part of employee invention assignment agreements on a Group Company’s form) providing for the sale, lease, license, assignment or control of any Intellectual Property to or from any Group Company or its Affiliates or equityholders;
(xvii) Contract providing for the development, modification, design, invention, production, acquisition, purchase, formulation or creation of any Intellectual Property;
(xviii) Contract pursuant to which a third party supplies any Group Company with active ingredients for product that is reasonably expected to involve future expenditures by any Group Company of more than $200,000 in the twelve (12) month period following the date hereof;
(xix) Contract relating to Debt or any guaranty of the obligations of any other Person (whether incurred, assumed, guaranteed or secured by any asset);
(xx) Contract granting any Person a Lien (or contemplating the granting of any Lien) on any assets or properties of any Group Company;
(xxi) Contract pursuant to which any Group Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Group Company;
(xxii) Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of rental exceeds $500,000 during the 2024 fiscal year200,000;
(xivxxiii) Contract between the Company providing for any obligation to make payments, contingent or any otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;
(xxiv) Contract that is a collective bargaining agreement or other labor agreement covering employees of any Group Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, ;
(xxv) Contract made other than any such Contracts in the primary purpose of which is the sale of any Products or Services to such Governmental BodyOrdinary Course; or
(xvxxvi) Contract to enter into any Contract of the type not otherwise described in any other subsection of this Section 4.10(a) with a term in excess of six months or providing for aggregate payments that (A) is reasonably expected to involve future expenditures by any Group Company of more than $200,000 in any one-year period following the foregoing clauses date hereof and (iB) through cannot be terminated by any Group Company on less than sixty (xiv)60) days’ notice without material payment or penalty, other than Ordinary Course product or active ingredient purchase contracts.
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would notWith such exceptions that, individually or in the aggregate, have not had, and are not reasonably be expected likely to be material to the have, a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect, (i) the no Group Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under the terms of any Contract listedContract, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Knowledge of the Company’s knowledge, as the other party to each of the Contracts is not in breach of or default under the terms of any such Contract, (iii) no Group Company has waived any right under any Contract; (iv) no event has occurred that, with the giving of notice or the lapse of time, or both, would constitute a breach of, or default under, any Contract; (v) there are no unresolved disputes under any of the Contracts; (vi) no Group Company has given to or received from any other Person, any written notice or other written communication regarding any actual, alleged, possible or potential breach of, or default under, any Contract, and (vii) each Contract is in full force and effect and is a valid and binding on and enforceable against the applicable Group Company in accordance with their terms and, to the Knowledge of the Company, on and against the other parties thereto, except that (A) such enforcement may be subject to applicable bankruptcy, insolvency, examinership, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (B) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(c) Prior to the date of this Agreement, the parties Company has delivered or made available to Parent a true, correct and complete copy of all Material Contracts, together with all amendments, waivers or other than changes thereto, and the Company or any has prior to the date of its Subsidiaries to each this Agreement provided Parent with true, correct and complete written summaries of all such Material Contracts that are unwritten.
(d) Section 4.10(d) of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As Disclosure Schedule contains as of the date of this AgreementAgreement a complete list of each Government Contract that is still in effect, no party to any Company Material identifying the (i) contracting agency, (ii) Contract has given any written noticetype and Contract number, or to the knowledge (iii) name and address, and contact information of the Companycontracting office and/or contracting officer, any notice (whether or not writteniv) total dollar value of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract Contract, and (whether as a result of the transactions contemplated hereby or otherwise)v) approximate remaining balance.
Appears in 2 contracts
Sources: Merger Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Contracts and Commitments. Neither the Company nor any of ------------------------- the Company Subsidiaries is a party to or is bound by:
(a) As any contracts relating to the borrowing of money, the guaranty of another Person's borrowing of money, or the creation of an encumbrance or lien on the assets of the Company or any of the Company Subsidiaries with outstanding obligations in excess of $500,000, individually, or $5 million in the aggregate;
(b) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of the Company's board of directors or any other employee who is one of the ten most highly compensated employees, including base salary and bonuses, other than those that are terminable by the Company or any of the Company Subsidiaries on no more than thirty days notice without liability or financial obligation or benefits generally available to employees of the Company, except to the extent general principles of wrongful termination law may limit the Company's or any of the Company Subsidiaries' ability to terminate employees at will;
(c) any agreement of indemnification or guaranty by the Company or any of the Company Subsidiaries not entered into in the ordinary course of business other than indemnification agreements between the Company or any of the Company Subsidiaries and any of its officers or directors in standard forms as filed by the Company with the SEC;
(d) any agreement, contract or commitment containing any covenant limiting the freedom of the Company or any of the Company Subsidiaries to engage in any line of business or conduct business in any geographical area, compete with any person or granting any exclusive distribution rights or limits the use or exploitation of the Company Intellectual Property;
(e) any agreement that expires or which the Company may not terminate more than one year after the date of this Agreement or any contract that may be renewed at the option of any person other than the Company so as to expire more than two years after the date of this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted distribution and resale agreements entered into in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesconsistent with past practice;
(viiif) Contract pursuant any agreement where performance in accordance with its terms will result in a loss to which the Company or any Company Subsidiary of its Subsidiaries has more than $300,000 during any continuing obligation to make any milestone 12 month period upon completion or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and performance thereof, after the date of this Agreementallowance for direct distribution expenses;
(ixg) mortgagesany contracts for capital expenditures in excess of $300,000, indenturesindividually, guaranteesor such contracts representing $3 million in the aggregate;
(h) any agreement, loans contract or credit agreements, security agreements or other Contracts commitment currently in force relating to the borrowing disposition or acquisition of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), assets not in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;or
(xi) Contract providing any agreement, contract or commitment for the purchase of any guaranty ownership interest in any corporation, partnership, joint venture or other business enterprise for consideration in excess of $300,000, in any case, which includes all escrow and earn-out agreements with outstanding obligations. A true and complete copy (including all material amendments) of each agreement, contract, obligation, promise or undertaking (whether written or oral and whether express or implied) required to be listed in Section 4.18(a) through Section 4.18(i) of the Company Disclosure Letter (a "Company Agreement"), or a summary of each oral contract, has been made available to the Parent. Each Company Agreement is in full force and effect. No condition exists or event has occurred that, (whether with or without notice or lapse of time or both, or the happening or occurrence of any other event) would constitute a default by the Company or any of its Subsidiaries of third-party obligations (under which the a Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business Subsidiary of the Company or any of its Subsidiaries;
(xi) Contract between or, to the Company's knowledge, on the one handany other party thereto under, and or result in a right in termination of, any Affiliate of the Company (other than a Subsidiary of the Company)Agreement, on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except except as would not, individually or in the aggregate, be reasonably be expected to be material to result in a Company Material Adverse Effect. Neither the Company and its Subsidiariesnor any Company Subsidiary is in violation of, taken as a whole, (i) the Company is not (and nor to the Company’s knowledge 's knowledge, is not alleged to be) in breach there any valid basis for any claim of or material default under or violation of, any Contract listed, Company Agreement or required commitment or restriction to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than which the Company or any Company Subsidiary is a party or by which any of its Subsidiaries to each them or any of the Company Material Contracts their assets is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)bound.
Appears in 2 contracts
Sources: Merger Agreement (Otg Software Inc), Merger Agreement (Legato Systems Inc)
Contracts and Commitments. (a) As of the date of this AgreementOriginal Execution Date, none of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementOriginal Execution Date;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementOriginal Execution Date;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this AgreementOriginal Execution Date;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this AgreementOriginal Execution Date), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement Original Execution Date but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this AgreementOriginal Execution Date, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this AgreementOriginal Execution Date, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this AgreementOriginal Execution Date, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Akoya Biosciences, Inc.), Agreement and Plan of Merger (Quanterix Corp)
Contracts and Commitments. (a) As DISCLOSURE SCHEDULE 2.16, CONTRACT COMMITMENTS, which is attached hereto, contains a complete list of each contract and commitment of the date of this AgreementSeller that is material to the operations, none assets, and business or financial condition of the Company or any that by its terms can reasonably be expected to require future payment by or to the Company of its Subsidiaries is a party $10,000 or more, including but not limited to or bound by anythe following:
(i) “material contract” All employment contracts and commitments between the Company and its employees, other than those terminable by the Company at will and without payment or penalty;
(as such term ii) All collective bargaining agreements and union contracts to which the Company is defined a party;
(iii) All contracts or commitments, written or oral, with distributors, brokers, manufacturer's representatives, sales representatives, service or warranty representatives, customers, and other persons, firms, or corporations engaged in Item 601(b)(10) of Regulation S-K the sale or distribution of the SECCompany's products or services;
(iv) with respect to All purchase orders issued by the Company in excess of $20,000, all sales orders received by the Seller in excess of $25,000 and all purchase or any of its Subsidiaries sales orders that was required to be, but has not been, filed with the SEC with the Company’s Annual Report call for delivery or performance on Form 10-K for the fiscal a date more than one year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until from the date of this Agreement;
(iiv) collective bargaining agreement All contracts and arrangements between the Company or Contract with any labor unionperson or entity that controls, trade organization, works council or other employee representative body, Contract with a third-party professional employer organizationis controlled by, or other Contract with is under common control with, the Seller or any other third party which cannot be terminated with thirty family member of any such person (30such entity or person, being hereinafter referred to as an "Affiliate");
(vi) days’ notice All contracts and arrangements, written or lessoral, under which the Company is either a bailor or any bailee including without limitation contracts for the bai▇▇▇▇▇ of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month periodAircraft;
(vii) Contract All agreements pursuant to which the Company acquired its Trade Name or any a substantial portion of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;assets; and
(viii) Contract pursuant to which All other contracts and commitments of the Company (excluding leases for the purpose of this Section 2.16(a)) and instruments reflecting obligations for borrowed money or for other indebtedness or guarantees thereof.
(b) At the Purchaser's request, the Seller shall deliver or cause to be delivered to the Purchaser full and complete copies of the documents identified above and all such other agreements and instruments as the Purchaser may reasonably request.
(c) The Seller is not a party to any written agreement that would restrict it from carrying on any line of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by business anywhere in the world.
(d) Each of the contracts listed on DISCLOSURE SCHEDULE 2.16 is valid and binding, and each of the contracts binding on the Company (whether or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ixnot listed on DISCLOSURE SCHEDULE 2.16) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), has been entered into in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness. To Seller's knowledge, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by neither the Company nor any other party hereto is in default under or any of its Subsidiaries of third-party obligations (under which in breach or violation of, and neither the Company or nor any of its Subsidiaries other party hereto has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company received notice of any asserted claim of its Subsidiaries’ obligations default by any other party under, or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contracta breach or violation of, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiariescontracts, on the one handagreements, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type commitments described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contractsthis Section 2.16, together including without limitation, any licensing or usage agreements with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material respect to the Company and its Subsidiaries, taken as a whole, (i) technology that the Company is not (now uses or currently intends and plans to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)use.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Limco-Piedmont Inc), Membership Interest Purchase Agreement (Tat Technologies LTD)
Contracts and Commitments. (a) As of the date For purposes of this Agreement, none each of the following shall be deemed to constitute a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term any Company Contract that is defined in Item 601(b)(10) of Regulation S-K required by the rules and regulations of the SECSEC to be filed as an exhibit to the Company SEC Reports;
(ii) with any Company Contract relating to the employment of any employee, and any Contract pursuant to which the Company or any Company Subsidiary is or may become obligated to make any severance, termination, bonus or relocation payment or any other payment (other than payments in respect of salary) in excess of $125,000, to any current or former employee or director;
(iii) any Company Contract relating to the acquisition, transfer, development, sharing or license of any material Proprietary Asset (except for any Company Contract pursuant to which (A) any material Proprietary Asset is licensed to the Company or any of its Subsidiaries that was required under any third party software license generally available for sale to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023public, or (B) any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with material Proprietary Asset is licensed by any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person on a non-exclusive basis);
(iv) any Company Contract which provides for indemnification of any officer, director or employee;
(v) any Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(vi) any Company Contract that involves the payment or expenditure of $750,000 that may not be terminated by the Company (or its Subsidiary, as the case may be) (without penalty) within 60 days after the delivery of a termination notice by the Company (or its Subsidiary, as the case may be);
(vii) any Company Contract contemplating or involving (A) the payment or delivery of cash or other consideration in any geographical areaan amount or having a value in excess of $750,000 in the aggregate, or (B) obligating the performance of services having a value in excess of $750,000 in the aggregate; or
(viii) any Company or Contract imposing any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons restriction on the right to manufacture, sell, market or distribute any Product ability of the Company or any of its SubsidiariesCompany Subsidiary to (A) compete with any other Person, in each case(B) acquire any material product or other material asset or any services from any other Person, on an exclusive basis sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any geographical area, (D) containing other manner with any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiariesother Person, or (EC) grants any rights of first refusal, right of first offer, right of negotiation develop or similar right to acquire rights or ownership with respect to distribute any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreementtechnology;
(ix) mortgagesany Company Contract involving interest rate swaps, indenturescaps, guarantees, loans floors or credit agreements, security option agreements or any other Contracts relating to the borrowing of money interest rate risk management arrangement or extension of credit, other than (A) accounts receivables and payablesforeign exchange contract; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;and
(x) Contract providing for any guaranty by the other Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose if a breach of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material Company Contract could reasonably be expected to the business of the have a Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)Material Adverse Effect.
(b) The Company has made available to Parent a true and correct copy of all written Each Company Material Contracts, together with any Contract is valid and all amendments thereof in full force and waivers thereundereffect, and a correct and complete written summary setting forth is enforceable in accordance with its terms.
(c) Neither the terms and conditions of each oral Company nor any Company Subsidiary has violated or materially breached, or committed any default under, any Company Material Contract. To the Company’s knowledge, no other Person has materially violated or breached, or committed any default under, any Company Material Contract.
(cd) Except as would notNo event has occurred, individually and no circumstance or in the aggregatecondition exists, that (with or without notice or lapse of time) could reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) result in a violation or breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) provision of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, ; (ii) give any Person the “right to declare a default or exercise any remedy under any Company Material Contracts”) and Contract; (iiiii) to the Company’s knowledge, as give any Person the right to receive or require a material rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Company Material Contract; or (v) give any Person the right to cancel, terminate or modify any Company Material Contract.
(e) Neither the Company nor any Company Subsidiary is party to a Government Contract and none of them has submitted a Government Bid.
(f) Schedule 4.14 of the date Company Disclosure Statement provides a list of this Agreementall Company Material Contracts (including all amendments thereto) not otherwise included in the Company SEC Reports. The Company has provided or made available to Buyer a copy of each Company Material Contract (including all amendments thereto) listed in Schedule 4.14 (f) of the Company Disclosure Statement, the parties other than Company Material Contracts filed as Exhibits to the Company or any SEC Reports and all copies of its Subsidiaries all amendments to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against filed as exhibits to the Company and its Subsidiaries (SEC Reports, to the extent party thereto) and, to such amendments have not been filed with the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)SEC.
Appears in 2 contracts
Sources: Merger Agreement (Spectrian Corp /Ca/), Merger Agreement (Spectrian Corp /Ca/)
Contracts and Commitments. Except as set forth in Schedule 2.18, with respect to subsections (a) As of through (k) below, or as set forth in the date of this AgreementMSGI Financial Statements, none of the Company or any of its Subsidiaries is a party to or bound by anyMSGI:
(a) does not have any contract, arrangement or commitment which is material to its business, operation or prospects (for the purpose of this subsection, any contract, or arrangement or commitment shall be deemed "material" if it calls for fixed and/or contingent payments thereunder of more than $25,000 in the aggregate) except those which (i) “material contract” are cancelable by MSGI on notice of not longer than thirty (as such term is defined 30) days an without liability, penalty or premium or (ii) are excepted fro disclosure pursuant to other sections in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(iib) collective bargaining agreement does not have any contract, arrangement or Contract commitment which may result in a loss exceeding $25,000;
(c) does not have any contract, arrangement or commitment with any labor uniondirector, trade organizationofficer, works council employee, agent, consultant, advisor, salesman or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which canproviding for future compensation of more than $25,000 that is not be terminated with cancelable by it on notice of not longer than thirty (30) days’ notice days and without liability, penalty or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employeespremium;
(iiid) Contract relating to the acquisition does not have any employment agreement with any officer, employee or disposition of agent, nor any product line, business agreement that contains any severance or material asset of the Company termination pay liabilities or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreementobligations;
(ive) Contract establishing does not have any joint ventures, partnerships, profit shares, material collaborations collective bargaining or similar arrangementsunion contracts or agreements;
(vf) Contract is not in Default of or in material breach or violation of, nor is there any basis known to MSGI for any valid claim therefor, under any contract, arrangement or commitment of MSGI involving more than $25,000;
(Ag) prohibiting or materially limiting the right of the Company does not have any agreement restricting it from carrying on its business or any of its Subsidiaries to compete part thereof anywhere in the world or from competing in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesperson;
(vih) (A) Third Party Component Contract does not have any debt obligation for borrowed money, including guarantees of or (B) other Contract relating agreements to the research, testing, development, commercialization, manufacture or supply acquire any such debt obligation of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month periodothers;
(viii) Contract pursuant does not have any outstanding loans to which the Company or any person and advances to directors, officers and employees of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its MSGI for business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted expenses in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesexceeding $10,000 in the aggregate;
(viiij) Contract pursuant to which the Company does not have any obligation or any of its Subsidiaries has any continuing obligation to make any milestone liability as guarantor, surety, co-signer, endorser, co-maker, indemnitor or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries otherwise in the aggregate over the term respect of the Contract from and after obligation of any other person including MSGI; or (k) does not have any irrevocable power of attorney to, or appointed as agent for service of process, any person except any agent for service of process in foreign jurisdictions, the date qualification of which is necessary to comply with the provisions of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (Medcare Technologies Inc), Merger Agreement (Medcare Technologies Inc)
Contracts and Commitments. (a) As of the date of this Agreementhereof, none of the Company or any of its Subsidiaries Obalon is a not party to or nor bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company Obalon or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the CompanyObalon’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232019, or any Company Obalon SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition by Obalon or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement other than in the ordinary course of business consistent with past practice or (2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in claims in excess of $100,000 or (B) pursuant to which Obalon or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Obalon’s Subsidiaries;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Obalon to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Obalon to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, party or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Obalon on an exclusive basis to any Person or group of Persons or in any geographical areaarea but excluding any distribution, (D) containing any “most favored nations” sales representative, sales agent or similar preferential terms agreement under which Obalon has granted a Person an exclusive geographical area and conditions (including with respect under which Obalon paid commissions less than $100,000 to pricing) granted by the Company or any of its Subsidiariessuch Person in 2019, or (E) grants any rights from whom Obalon received less than $100,000 from the sale of first refusal, right of first offer, right of negotiation or similar right product to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariessaid Person in 2019;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company Obalon or any of its Subsidiaries (Ai) licenses any material Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property Person that is used by the Company Obalon or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Obalon or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (each, a “Company In-License”12) month period or (Bii) licenses any Obalon Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate)Person, except non-exclusive licenses that are granted provided to direct customers in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesbusiness;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ixvii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditcredit of $100,000 or more, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-owned Subsidiariessubsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000business consistent with past practice;
(xviii) Contract providing for any guaranty by the Company Obalon or any of its Subsidiaries of third-party obligations (under which the Company Obalon or any of its Subsidiaries has continuing obligations as of the date hereof) of this Agreement)$100,000 or more, other than (A) any guaranty by the Company of Obalon or any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xiix) Contract between the CompanyObalon, on the one hand, and any Affiliate of the Company Obalon (other than a Subsidiary of the CompanyObalon), on the other handhand (other than an Obalon Plan);
(xiix) Company Real Property leaseContract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Obalon or its Subsidiaries;
(xiiixi) Contract under which the Company Obalon and the CompanyObalon’s Subsidiaries made are expected to make annual expenditures or received receive annual revenues in excess of $500,000 100,000 during the 2024 current or a subsequent fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xvxii) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)foregoing.
(b) The Company ReShape has made available been given access to Parent a true and correct copy of all written Company Obalon Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Obalon Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as have a wholeMaterial Adverse Effect on Obalon, (i) the Company Obalon is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a4.12(a) of the Company Obalon Disclosure Letter Schedule (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a an “Company Obalon Material Contract” and, collectively, the “Company Obalon Material Contracts”) and ), and, (ii) to the CompanyObalon’s knowledge, as of the date of this Agreementhereof, the parties other than the Company or any of its Subsidiaries party to each of the Company Obalon Material Contracts is not in breach thereof or in default thereunder. Each Company Obalon Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) Obalon and, to the CompanyObalon’s knowledge, each other party thereto. As of the date of this Agreementhereof, no party to any Company Obalon Material Contract has given any written notice, or to the knowledge of the CompanyObalon, any notice (whether or not written) of termination or cancellation of any Company Obalon Material Contract or that it intends to seek to terminate or cancel any Company Obalon Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (ReShape Lifesciences Inc.), Merger Agreement (Obalon Therapeutics Inc)
Contracts and Commitments. (a) As Schedule 3.13(a) sets forth a complete and accurate list of all Material Contracts (as hereinafter defined) as of the date hereof. For purposes of this Agreement, none “Material Contracts” means (i) all agreements (whether written or verbal) (other than purchase orders that do not materially amend the terms of such agreements on an ongoing basis) with the (1) largest sixteen (16) customers of the Company or any and its Subsidiaries, taken as a whole (by dollar volume of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of sales), during the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year years ended December 31, 20232020 and December 31, or any 2021 (the “Major Customers”) and (2) the largest ten (10) suppliers of the Company SEC Documents filed after and its Subsidiaries, taken as a whole (by dollar volume of purchases), during the date of filing of such Form 10-K until years ended December 31, 2020 and December 31, 2021 (the date of this Agreement;
“Major Suppliers”); (ii) collective bargaining all joint venture agreements, partnership agreements, strategic alliance or similar contract or any agreement involving a sharing of profits, revenues, losses, costs or Contract liabilities with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
person; (iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted agreements granting to any Person or group of Persons the person a right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right or option to purchase or acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
; (viiv) any agreements entered into by the Company or any of its Subsidiaries within three (A3) Third Party Component Contract or (B) other Contract relating years prior to the researchdate hereof for the acquisition or disposition (whether by merger, testingsale of stock, development, commercialization, manufacture sale of assets or supply otherwise) of any Product person, business or material assets that contain continuing payment obligations of the Company or any of its Subsidiaries; (v) any agreements executed with Affiliates, and(vi) agreements executed with any Governmental Authority, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company collective bargaining agreements or agreements with any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Personlabor organization, which Intellectual Property is used by the Company union or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
association; (viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty bonus, pension, profit-sharing, retirement or other “earnout” or similar contingent or form of deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
compensation plan; (ix) mortgagesany contract for the employment of any officer, indentures, guarantees, loans or credit agreements, security agreements individual employee or other Contracts relating to person on a full-time or consulting basis providing (a) for base compensation in excess of $150,000, (b) a payment, benefit or accelerated vesting plan upon the borrowing execution of money this Agreement or extension the transactions contemplated by this Agreement, or (c) for payment upon the severance of creditany officer, individual employee, or other than (A) accounts receivables and payablesperson on a full-time, part-time, consulting or other basis; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty agreements which provide for, or relate to, the incurrence by the Company or any of its Subsidiaries of third-party obligations indebtedness for borrowed money, and Capital Leases of the Company or any of its Subsidiaries with respect to an aggregate amount greater than $250,000, (under xi) all mortgages, pledges and guarantees of indebtedness of persons other than the Company or its Subsidiaries, (xii) all agreements that limit, or would reasonably be expected to limit, the ability of the Company or any of its Subsidiaries to engage in any line of business or in any business in a geographic area, or to solicit, or solicit the business of, any person and/or to hire any person; (xiii) agreements that grant any person exclusivity rights or contain a “most favored nations” provision; (xiv) any contract that relates to the retention by the Company of any broker or other sales agent, distributor or representative or advertising or marketing entity or through which the Company or any of its Subsidiaries has continuing obligations is appointed or authorized as of the date of this Agreement)a sales agent, other than (A) distributor or representative, in each case, involving payments to any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues person in excess of to $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, 50,000; and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)IP Licenses.
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Sources: Stock Purchase Agreement (Alj Regional Holdings Inc)
Contracts and Commitments. (a) As of the date of this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232022, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement Contract relating to the disposition, transfer or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which acquisition by the Company or any of its Subsidiaries obtains of any material tangible or intangible assets (or ownership interest in any other Person or other business enterprise) (A) after the services date of temporary this Agreement, other than the sale of inventory in the ordinary course of business, or leased employees(B) prior to the date of this Agreement, that contains any material ongoing obligations of the Company (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are expected to result in claims in excess of $1,000,000;
(iii) Contract relating to the acquisition establishing any joint venture, partnership or disposition of any product line, business or material asset of the Company or any of its Subsidiariescollaboration, in each case, with obligations remaining that is material to be performed or Liabilities continuing after the date of this AgreementCompany and its Subsidiaries, taken as a whole;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(v) Contract in respect of Indebtedness of $2,500,000 or more, (D) containing other than any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted Indebtedness owed by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right Subsidiary to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesother Subsidiary;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Softwarea Company Plan) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities, or any stockholders’, investor rights, tax receivables or similar or related Contracts with respect to any securities of the Company or any of its Subsidiaries;
(viii) Contract containing a right of first refusal, right of first negotiation, right of first offer, option or other similar rights with respect to any equity interests or assets that have a fair market value or purchase price of more than $2,000,000 in favor of a party other than the Company or its Subsidiaries;
(ix) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $2,000,000 during the current or a subsequent fiscal year;
(x) Contract relating to the settlement of any litigation proceeding that provides for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xi) Contract that prohibits, limits, restricts or requires the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibits, limits, restricts or requires the pledging of capital stock of the Company or any of its Subsidiaries or prohibits, limits, restricts or requires the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xii) Contract with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Company Real Property leaseProducts that involve payments in excess of $1,000,000 during the current or a subsequent fiscal year;
(xiii) Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, extension of credit or capital contribution to, or other investment in, any Person that is not a Subsidiary of the Company (other than extensions of credit to customers in the ordinary course of business and advances to directors, officers and other employees for travel and other business-related expenses, in each case, in the Company’s Subsidiaries made annual expenditures or received annual revenues in excess ordinary course of $500,000 during the 2024 fiscal yearbusiness);
(xiv) Labor Agreement;
(xv) Government Contract between involving payments in excess of $1,000,000 to or from the Company and its Subsidiaries during the current or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Bodya subsequent fiscal year; or
(xvxvi) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xvi) above of this Section 3.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease listed in Section 3.11(b) of the Company Disclosure Letter, other than any Company Plan, is referred to herein as a “Company Material Contract.”
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all material amendments thereof and waivers thereunderthereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would not, individually or in the aggregate, not reasonably be expected to be material to have a Company Material Adverse Effect, neither the Company and nor any of its SubsidiariesSubsidiaries (A) is, taken as a wholeor has sent or received written notice that any other party to any Company Material Contract is, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written noticenotice of termination, cancellation or breach of, or to the knowledge of the Companydispute with respect to, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreementhereof, none of the Company or is not, nor is any of its Subsidiaries is Subsidiary, a party to or bound by anyany oral or written contract:
(i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act) to be performed in full or in part after the date of this Agreement that has not been filed or incorporated by reference in the Company Reports;
(ii) that is a partnership, joint venture, strategic alliance or cooperation agreement (or any agreement similar to any of the SECforegoing), in each case which is material to the Company and its Subsidiaries taken as a whole;
(iii) with respect to that prohibits the Company or any of its Subsidiaries that was required to be, but has not been, filed with from freely engaging or competing in any line of business anywhere in the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementworld;
(iiiv) collective bargaining agreement between the Company and any of its Affiliates (other than Subsidiaries), directors or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which canofficers that is not be terminated with thirty on arms length terms;
(30v) days’ notice or less, under pursuant to which the Company or any of Subsidiary licenses (as licensor or licensee) any cotton or soybean hybrids or any germplasm or any other Intellectual Property related to cotton or soybeans, in each case which is material to the Company and its Subsidiaries obtains taken as a whole, except in each case any of the services of temporary or leased employees;
(iii) Contract relating foregoing which is licensed to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after Subsidiary by the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company Parent or any of its Subsidiaries Affiliates;
(vi) that involves an amount in excess of $1,500,000 and pursuant to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person incurred or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of accrued losses;
(vii) that by its Subsidiaries, terms may be terminated upon a change in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business control of the Company or any of its Subsidiaries;
(viviii) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which that commits the Company or any of its Subsidiaries to purchase or sell any properties or assets outside of the ordinary course of business for consideration in excess of $1,500,000; or
(Aix) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Personthat involves an unfulfilled obligation, which Intellectual Property is used by the Company individually or one of its Subsidiaries in the conduct aggregate, in excess of its $1,500,000 and is incurred outside the ordinary course of business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed and is not terminable by the Company or any of its Subsidiaries to another Person (other upon less than an Affiliate), except non-exclusive licenses that are granted in the ordinary course 120 calendar days’ notice for a cost of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant not less than $1,500,000. The foregoing contracts and agreements to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone Subsidiary are parties or royalty or other “earnout” or similar contingent or deferred payments potentially payable by are bound and that are listed in the Company or Disclosure Letter, together with all contracts and agreements filed as exhibits to the Company Reports, are collectively referred to herein as the “Company Material Contracts.”
(b) (i) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgagesthat is a party thereto, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligationsapplicable, and which indemnification obligations are not material in full force and effect, except where the failure to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Companybe valid, on the one hand, binding and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company in full force and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as effect would not, individually or in the aggregate, reasonably be expected to be material to have a Material Adverse Effect, (ii) the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any each of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) has and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, all other parties thereto have, performed all obligations required to be performed by such Person under each Company Material Contract, except where such noncompliance would not, individually or in the aggregate, have a Material Adverse Effect, and (iii) neither the Company nor any of its Subsidiaries knows of, or has received written notice (whether of, the existence of any event or not written) condition which constitutes, or, after notice or lapse of termination time or cancellation both, will constitute, a default on the part of the Company, any of its Subsidiaries or any other party thereto under any Company Material Contract Contract, except where such default would not, individually or that it intends to seek to terminate or cancel any Company in the aggregate, have a Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Monsanto Co /New/)
Contracts and Commitments. (a) As Section 4.12(a) of the Company Disclosure Letter identifies each Contract that constitutes a Company Material Contract as of the date of this Agreement. For purposes of this Agreement, none each of the following shall be deemed a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term is defined in Item 601(b)(10601 (b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementK;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty U.S. jurisdictions) (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees“Labor Agreements”);
(iii) Contract establishing or relating to the acquisition formation, creation, operation, management or disposition control of any product linejoint venture, business partnership, collaboration or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreementsimilar arrangement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services with a value in excess of $500,000, or to sell any material product or service exclusively to a single party, (C) under which any Person has been granted the (1) exclusive right to develop, manufacture, sell, market or distribute the Products, or (2) non-exclusive right to develop, manufacture, sell, market or distribute the Products (excluding, solely for subclause (C)(2), any Routine Services Contracts entered into in the ordinary course of business), (D) provides for “exclusivity” or any similar requirement in favor of any Person or group of Persons or in any geographical area or (E) requiring the Company or any of its Affiliates (including, following the Closing, Parent or any of its Affiliates) to conduct any business on a “most favored nations” basis with any Person;
(v) Contract containing any “non-solicitation” or “no-hire” provision that restricts the Company or and of its Subsidiaries;
(vi) Contract in respect of Indebtedness of $500,000 or more, or any loan by the Company to any other Person;
(vii) Contract (other than a Company Plan) between the Company or any of its Subsidiaries, on the one hand, and any Affiliate of the Company, on the other hand;
(viii) Contract relating to the voting or registration of any securities;
(ix) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets;
(x) Contract that contains any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has granted agreed not to any Person acquire assets or group securities of Persons another Person;
(A) Contract and (B) open purchase order, in each case, for payments that remain or may become due of $500,000 or more (such Contracts and purchase orders, or work orders, change orders or master services agreements relating to the right to manufacturesame, sellthe “Purchase Orders”) other than, market in each case, a Company Plan;
(xii) Corporate integrity agreement, consent decree, deferred prosecution agreement, non-prosecution agreement, or distribute any Product other similar type of agreement with Governmental Bodies that have existing or contingent performance obligations;
(xiii) Contract of the Company or any of its SubsidiariesSubsidiaries relating to the settlement, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” conciliation or similar preferential terms and conditions (including agreement with respect to pricing) granted by the Company any Governmental Body or any of its SubsidiariesPerson, or (E) grants that provides for any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any continuing material assets or business obligations on the part of the Company or any of its Subsidiaries;
(vixiv) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its SubsidiariesSubsidiaries that prohibit, andlimit or restrict the payment of dividends or distributions in respect of the Company Securities, in or otherwise prohibit, limit or restrict the case pledging of this clause (B)Company Securities, providing for minimum payment obligations payable to or prohibit, limit or restrict the issuance of guarantees by the Company or any of at least $100,000 in its Subsidiaries other than the Company Equity Plans or any prospective twelve (12)-month periodContracts evidencing awards granted under the Company Equity Plans;
(viixv) stockholders’, investors rights’, registration rights or similar Contract (excluding Contracts governing Company Stock Options or Company RSUs);
(xvi) Contract (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company or any of its Subsidiaries leases, subleases, uses or occupies any real property;
(Axvii) licenses Contract with or binding upon the Company, any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries respective properties or assets that is of the type that would be required to another Person (other than an Affiliate), except nonbe disclosed under Item 404 of Regulation S-exclusive licenses that are granted in K under the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its SubsidiariesSecurities Act;
(viiixviii) IP Contract;
(xix) Contract with any academic institution, research center or Governmental Body that relates to any Owned Intellectual Property or any other material Company Intellectual Property (or the research or development of any of the foregoing or the funding for such research or development activities);
(xx) Contract with respect to commercialization, manufacturing, supply, service, maintenance, collaboration, co-promotion, discovery, research, development or profit sharing (including any such Contracts with any third-party payor or any third party contract research organization or third party contract manufacturing organization that develops, manufactures or supplies any Products and/or that directly conducts clinical trials), in each case, with a value in excess of $500,000;
(xxi) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other guarantee, “earnoutearn-out” or similar contingent payment obligations (other than indemnification or deferred performance guarantee obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or its Subsidiaries, in each case, that could result in payments potentially payable by in excess of $500,000;
(xxii) Contract that obligates the Company or any of its Subsidiaries to make any capital commitment or capital expenditure in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal an amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year500,000;
(xivxxiii) Contract between or offer letter that is for the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale employment of any Products directors, officers or Services to such Governmental Body; oremployees at annual base salary in excess of $250,000;
(xvxxiv) Contract with any independent contractor or consultant involving annual payments in excess of $250,000; and
(xxv) Contract or arrangement to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)foregoing.
(b) The Company has made available to Parent a A true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material ContractContract has been made available to Parent.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) Neither the Company is not nor any of its Subsidiaries (and A) is, or has received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under and (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not Contract (excluding expiration of any Contract in breach thereof or in default thereunder. Each accordance with its terms) and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiaries, as applicable, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise). The Company has not deferred payment under any Material Contract, received notice of an overdue invoice with respect to any Material Contract, or agreed with any counterparty to any Material Contract that payment of amounts owed by the Company under such Material Contract may be deferred or delayed. The Company has timely paid all amounts due and payable under each Material Contract in accordance with its terms.
Appears in 1 contract
Contracts and Commitments. (a) As Schedule 4.12 sets forth an accurate and complete list of each Contract of the Company in effect as of the date of this Agreement to which the Company is a party or which affects the Company or its assets, (i) with a dealer, broker, sales agency, advertising agency or other Person engaged in sales or promotional activities, (ii) which requires aggregate payments by or to the Company, or involves an unperformed commitment or service, having a value in excess of Twenty-Five Thousand Dollars ($25,000), (iii) pursuant to which the Company has made or will make loans or advances, or has or will incur debts or become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another, (iv) which is an indenture, credit agreement, loan agreement, note, mortgage, security agreement, lease of real property or personal property or agreement for financing, (v) involving a partnership, joint venture or other cooperative undertaking, (vi) involving material restrictions relating to any business conducted or proposed to be conducted by the Company, (vii) which is a power of attorney or agency agreement or written arrangement with any Person pursuant to which such Person is granted the authority to act for or on behalf of the Company, (viii) with respect to which the requirements for performance extend beyond one (1) year from the date of this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any:
(iix) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) which contains warranties with respect to products manufactured and/or sold or services rendered by the Company other than those warranties expressly made in the literature accompanying such products, (x) which is a consulting or any of its Subsidiaries that was required to beprofessional advisor agreement, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(iixi) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty without penalty or payment or on at least ninety (3090) days’ notice or less' notice, under which the Company or (xii) with any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its SubsidiariesCompany's Affiliates, or (Exiii) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to be performed at or after the business date of this Agreement (the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv"Material Contracts").
(b) Except as set forth on Schedule 4.12, to the knowledge of the Company or Seller, no Material Contract has been materially breached or cancelled by the other party, and neither the Company nor Seller has knowledge of any anticipated material breach by any other party to any Material Contract. The Company and Seller have performed all the material obligations required to be performed by them in connection with each Material Contract and are not in material default under or in breach of any Material Contract, and no event has occurred which with the passage of time or the giving of notice or both would result in a material default or breach thereunder. Neither the Company nor Seller has a present expectation or intention of not fully performing any material obligation pursuant to any Material Contract. Each Material Contract is legal, valid, binding, enforceable and in full force and effect. Except as set forth on Schedule 4.12, to the knowledge of Seller and the Company, no Material Contract obligates the Company to process, manufacture or deliver products or perform services that shall result in a loss upon completion of performance.
(c) Seller has made available all Material Contracts disclosed pursuant to Parent Section 4.12(a)(ii), which have a value of less than One Hundred Thousand Dollars ($100,000) and has provided Buyer with a true and correct copy of all other written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or Contracts that are required to be listeddisclosed on Schedule 4.12, in Section 3.12(a) and has furnished to Buyer all amendments, waivers or any material changes thereto (all of which are disclosed on Schedule 4.12). Schedule 4.12 contains an accurate and correct description of all material terms of all oral Material Contracts. Except as set forth on Schedule 4.12, no consent is required, and no change of control provisions are triggered, with respect to any of the Company Disclosure Letter (eachMaterial Contracts in connection with the execution, together with any Contract entered into after the date delivery and performance of this Agreement but would be required to be set forth on Section 3.12(a) of and the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result consummation of the transactions contemplated hereby hereby.
(d) Schedule 4.12 sets forth a list of each location where the Company leases real property, the applicable lease agreement, whether the Company still occupies the property, the status of past due obligations under the lease and a summary of any litigation threatened or otherwise)commenced by the landlord. Schedule 4.12 lists each lease for real property terminated by the landlord in the last twelve months and the status of any past due obligations under such leases and a summary of any related litigation.
Appears in 1 contract
Sources: Purchase Agreement (Computer Network Technology Corp)
Contracts and Commitments. (a) As Schedule 3.16 attached hereto contains a true, complete and ------------- correct list and description of the date following contracts and agreements, whether written or oral (collectively, the "Contracts"):
(1) all loan agreements, indentures, mortgages and guaranties to which the Company or any of this Agreementthe Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(2) all pledges, none conditional sale or title retention agreements, security agreements, equipment obligations, personal property leases and lease purchase agreements to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(3) all contracts, agreements, commitments, (other than purchase orders) or other understandings or arrangements to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound which (A) involve payments or receipts by the Company or any of the Subsidiaries of more than $25,000 in the case of any single contract, agreement, commitment, understanding or arrangement under which full performance (including payment) has not been rendered by all parties thereto or (B) which may materially adversely affect the condition (financial or otherwise) or the properties, assets, business or prospects of the Company or any of its Subsidiaries is a party to or bound by any:the Subsidiaries;
(i4) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect all collective bargaining agreements, employment and consulting agreements, executive compensation plans, bonus plans, deferred compensation agreements, pension plans, retirement plans, employee stock option or stock purchase plans and group life, health and accident insurance and other employee benefit plans, agreements, arrangements or commitments to which the Company or any of its the Subsidiaries that was required to be, but has not been, filed with is a party or by which the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, Company or any Company SEC Documents filed after of the date Subsidiaries or any of filing of such Form 10-K until the date of this Agreementtheir property is bound;
(ii5) collective bargaining agreement all agency, distributor, sales representative, franchise or Contract with similar agreements to which the Company or any labor unionof the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(6) all contracts, trade organization, works council agreements or other employee representative bodyunderstandings or arrangements between the Company and any of the Subsidiaries (including, Contract with a third-party professional employer organizationbut not limited to, any tax sharing arrangements) or other Contract with any other third party which cannot be terminated with thirty between the Company and the Parent or their affiliates;
(307) days’ notice all leases, whether operating, capital or lessotherwise, under which the Company or any of its the Subsidiaries obtains the services of temporary is lessor or leased employeeslessee;
(iii) Contract 8) all contracts, agreements and other documents or information relating to the acquisition past disposal of waste (whether or disposition not hazardous), and sales of any product linesteel scrap, business prototypes, tools and dies;
(9) all contracts, agreements or material asset of other arrangements imposing a non-competition or non-solicitation obligation on the Company or any of its Subsidiaries; and
(10) any other material agreements or contracts (other than purchase orders) entered into by the Company or any of the Subsidiaries.
(1) Each Contract is a valid and binding agreement of the Company or the relevant Subsidiary, enforceable against the Company or the relevant Subsidiary in accordance with its terms, and, to the best of the Parent's knowledge, each caseContract is a valid and binding agreement of the other parties thereto;
(2) the Company or the relevant Subsidiary has fulfilled all material obligations required pursuant to the Contracts to have been performed by the Company or the relevant Subsidiary, with as the case may be, on its part prior to the date hereof, and to the best of the Parent's knowledge it will be able to fulfill, when due, all of its obligations remaining under the Contracts which remain to be performed or Liabilities continuing after the date hereof; the Company's outstanding purchase orders on the Closing Date provide for a number of this Agreementunits to be delivered that are consistent with the Company's historical capacity to produce such number of units within the prescribed contractual period;
(iv3) Contract establishing the Company or the relevant Subsidiary is not in breach of or default in any joint venturesmaterial respect under any Contract, partnershipsand, profit sharesto the best knowledge of the Parent, material collaborations no event has occurred which with the passage of time or similar arrangementsgiving of notice or both would constitute such a default, result in a loss of rights or result in the creation of any lien, charge or encumbrance, thereunder or pursuant thereto;
(v4) Contract to the best knowledge of the Parent, there is no existing breach or default by any other party of a material obligation under any Contract, and to the best knowledge of the Parent no event has occurred which with the passage of time or giving of notice or both would constitute a default by such other party, result in a loss of rights or result in the creation of any lien, charge or encumbrance thereunder or pursuant thereto;
(A5) prohibiting there are not and, since October 1, 1996 have not been, any claims material in amount of a non-routine nature relating to the Company or materially limiting the right any Subsidiary by customers of the Company or any of its the Subsidiaries to compete in under any line of business warranties, whether express or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesimplied;
(vi6) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues are not restricted by any Contract from carrying on their business anywhere in excess of $500,000 during the 2024 fiscal year;world; and
(xiv7) Contract between neither the Company or nor any of the Company’s SubsidiariesSubsidiaries has any written or oral contracts to sell products or perform services which are expected to be performed at, on the one handor to result in, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contractloss.
(c) Except as would notTrue, individually or correct and complete (in the aggregate, reasonably be expected to be all material to the Company and its Subsidiaries, taken as a whole, (irespects) the Company is not (and to the Company’s knowledge is not alleged to be) in breach copies of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than all Contracts have previously been delivered by the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (Parent to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Buyer.
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreement, none of the Company or any of its Subsidiaries is not a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232019, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employeesU.S. jurisdictions);
(iii) Contract relating to the acquisition establishing any joint venture, partnership, collaboration or disposition of any product line, business or material asset of the Company or any of its Subsidiariessimilar arrangement, in each case, with obligations remaining that is reasonably likely to be performed or Liabilities continuing after the date result in payments in excess of this Agreement$1,000,000;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or to sell any material product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the (1) exclusive right to develop, manufacture, sell, market or distribute any Product product of the Company or (2) non-exclusive right to develop, manufacture, sell, market or distribute any product of the Company (excluding, solely for subclause (C)(2), any Routine Services Contracts entered into in the ordinary course of business), (D) provides for “exclusivity” or any similar requirement in favor of any Person or group of Persons or in any geographical area or (E) requiring the Company or any of its SubsidiariesAffiliates (including, in each casefollowing the Closing, Parent or any of its Affiliates) to conduct any business on an exclusive basis in any geographical area, (D) containing any a “most favored nations” basis with any Person;
(v) Contracts in respect of Indebtedness of $250,000 or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesmore;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Softwarea Company Plan) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xiivii) Company Real Property leaseContract relating to the voting or registration of any securities;
(xiiiviii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets that have a fair market value or purchase price of more than $250,000 in favor of a party other than the Company;
(ix) Contract under which the Company and the Company’s Subsidiaries made is expected to make annual expenditures or received annual revenues in excess of $500,000 during the 2024 current or a subsequent fiscal year;
(x) Corporate integrity agreements, consent decrees, deferred prosecution agreements, or other similar types of agreements with Governmental Bodies that have existing or contingent performance obligations;
(xi) Contracts of the Company relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company;
(xii) Contracts of the Company that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or otherwise prohibit, limit or restrict the pledging of capital stock of the Company or prohibit, limit or restrict the issuance of guarantees by the Company other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiii) stockholders’, investors rights’, registration rights or similar Contract (excluding Contracts governing Company Stock Options or Company Restricted Stock);
(xiv) Contract between (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company leases or subleases any material real property;
(xv) Contract with or binding upon the Company or any of its respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xvi) IP Contract containing terms addressing ownership, rights to use, covenants or waivers with respect to or the right to prosecute or enforce any Owned Intellectual Property or any other Company Intellectual Property;
(xvii) Contract with any academic institution, research center or Governmental Body (excluding any Routine Services Contracts entered into in the ordinary course of business) that relates to any Owned Intellectual Property or any other material Company Intellectual Property (or the research or development of any of the foregoing or the funding for such research or development activities);
(xviii) Contract not described in clause (xvi) above pursuant to which the Company has continuing guarantee, “earn-out” or similar contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company’s Subsidiaries, on the one handin each case, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose that could result in payments in excess of which is the sale of any Products or Services to such Governmental Body; or$500,000;
(xvxix) Contract with any independent contractor or consultant involving annual payments in excess of $250,000; and
(xx) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xx) above of this Section 4.12(a) is referred to herein as a “Company Material Contract.”
(b) The Company Parent has made available been given access to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would not have a Company Material Adverse Effect, the Company (A) is not, individually and has not received written notice that any other party to any Company Material Contract is, in violation or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default (with or without notice or lapse of time or both) under and (B) has not waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and its Subsidiaries (to the extent party thereto) Company, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As Schedule 3.16 attached hereto contains a true, complete and correct list and description of the date following contracts and agreements, whether written or oral (collectively, the "Contracts"):
(1) all loan agreements, indentures, mortgages and guaranties to which the Company or any of this Agreementthe Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(2) all pledges, none conditional sale or title retention agreements, security agreements, equipment obligations, personal property leases and lease purchase agreements to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(3) all contracts, agreements, commitments, (other than purchase orders) or other understandings or arrangements to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound which (A) involve payments or receipts by the Company or any of the Subsidiaries of more than $25,000 in the case of any single contract, agreement, commitment, understanding or arrangement under which full performance (including payment) has not been rendered by all parties thereto or (B) which may materially adversely affect the condition (financial or otherwise) or the properties, assets, business or prospects of the Company or any of its Subsidiaries is a party to or bound by any:the Subsidiaries;
(i4) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect all collective bargaining agreements, employment and consulting agreements, executive compensation plans, bonus plans, deferred compensation agreements, pension plans, retirement plans, employee stock option or stock purchase plans and group life, health and accident insurance and other employee benefit plans, agreements, arrangements or commitments to which the Company or any of its the Subsidiaries that was required to be, but has not been, filed with is a party or by which the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, Company or any Company SEC Documents filed after of the date Subsidiaries or any of filing of such Form 10-K until the date of this Agreementtheir property is bound;
(ii5) collective bargaining agreement all agency, distributor, sales representative, franchise or Contract with similar agreements to which the Company or any labor unionof the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(6) all contracts, trade organization, works council agreements or other employee representative bodyunderstandings or arrangements between the Company and any of the Subsidiaries (including, Contract with a third-party professional employer organizationbut not limited to, any tax sharing arrangements) or other Contract with any other third party which cannot be terminated with thirty between the Company and the Parent or their affiliates;
(307) days’ notice all leases, whether operating, capital or lessotherwise, under which the Company or any of its the Subsidiaries obtains the services of temporary is lessor or leased employeeslessee;
(iii) Contract 8) all contracts, agreements and other documents or information relating to the acquisition past disposal of waste (whether or disposition not hazardous), and sales of any product linesteel scrap, business prototypes, tools and dies;
(9) all contracts, agreements or material asset of other arrangements imposing a non-competition or non-solicitation obligation on the Company or any of its Subsidiaries; and
(10) any other material agreements or contracts (other than purchase orders) entered into by the Company or any of the Subsidiaries.
(b) Except as set forth on Schedule 3.16:
(1) Each Contract is a valid and binding agreement of the Company or the relevant Subsidiary, enforceable against the Company or the relevant Subsidiary in accordance with its terms, and, to the best of the Parent's knowledge, each caseContract is a valid and binding agreement of the other parties thereto;
(2) the Company or the relevant Subsidiary has fulfilled all material obligations required pursuant to the Contracts to have been performed by the Company or the relevant Subsidiary, with as the case may be, on its part prior to the date hereof, and to the best of the Parent's knowledge it will be able to fulfill, when due, all of its obligations remaining under the Contracts which remain to be performed or Liabilities continuing after the date hereof; the Company's outstanding purchase orders on the Closing Date provide for a number of this Agreementunits to be delivered that are consistent with the Company's historical capacity to produce such number of units within the prescribed contractual period;
(iv3) Contract establishing the Company or the relevant Subsidiary is not in breach of or default in any joint venturesmaterial respect under any Contract, partnershipsand, profit sharesto the best knowledge of the Parent, material collaborations no event has occurred which with the passage of time or similar arrangementsgiving of notice or both would constitute such a default, result in a loss of rights or result in the creation of any lien, charge or encumbrance, thereunder or pursuant thereto;
(v4) Contract to the best knowledge of the Parent, there is no existing breach or default by any other party of a material obligation under any Contract, and to the best knowledge of the Parent no event has occurred which with the passage of time or giving of notice or both would constitute a default by such other party, result in a loss of rights or result in the creation of any lien, charge or encumbrance thereunder or pursuant thereto;
(A5) prohibiting there are not and, since October 1, 1996 have not been, any claims material in amount of a non-routine nature relating to the Company or materially limiting the right any Subsidiary by customers of the Company or any of its the Subsidiaries to compete in under any line of business warranties, whether express or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesimplied;
(vi6) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues are not restricted by any Contract from carrying on their business anywhere in excess of $500,000 during the 2024 fiscal year;world; and
(xiv7) Contract between neither the Company or nor any of the Company’s SubsidiariesSubsidiaries has any written or oral contracts to sell products or perform services which are expected to be performed at, on the one handor to result in, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contractloss.
(c) Except as would notTrue, individually or correct and complete (in the aggregate, reasonably be expected to be all material to the Company and its Subsidiaries, taken as a whole, (irespects) the Company is not (and to the Company’s knowledge is not alleged to be) in breach copies of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than all Contracts have previously been delivered by the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (Parent to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mechanical Technology Inc)
Contracts and Commitments. (a) As of the date of this Agreement, none hereof and except as set forth in Section 3.13 of the Company or any of Disclosure Letter, neither the Company nor its Subsidiaries Subsidiary is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiary that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition by the Company or its Subsidiary of a material amount of assets or equity interests in any Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $250,000 or (B) pursuant to which the Company or its Subsidiary will acquire or dispose of any material ownership interest in any other person or other business enterprise other than the Company’s Subsidiary;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) any Contract (A) prohibiting or materially limiting the freedom or right of the Company or its Subsidiary, in any of its Subsidiaries material respect, to compete engage in any line of business business, to make use of any material Intellectual Property that is owned or purported to be owned by the Company or its Subsidiary or to conduct business compete with any other Person or in any geographical arealocation or line of business, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, Subsidiary or (EC) grants any rights of first refusal, containing exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or its Subsidiary to sell, distribute or manufacture any of its Subsidiariesproducts or services or any technology or other assets to or for any other Person;
(vi) (A) Third Party Component Contract in respect of Indebtedness of $250,000 or (B) other Contract relating to the researchmore, testing, development, commercialization, manufacture individually or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditaggregate, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-owned Subsidiariesits Subsidiary, in each case in the case ordinary course of each business consistent with past practice;
(vii) Contract that requires by its terms or is reasonably likely to require the payment or delivery of clauses cash or other consideration by or to the Company or its Subsidiary in an amount having an expected value in excess of $250,000 in the fiscal year ending December 31, 2022 or in any fiscal year thereafter and cannot be cancelled by the Company or its Subsidiary, as applicable, without penalty or further payment without more than ninety (A90) and days’ notice (Bother than payments for services rendered to the date), excluding commercially available off-the-shelf software licenses and Software‑as‑a‑Service offerings, generally available patent license agreements entered into in the ordinary course of business; , material transfer agreements, services agreements, clinical trial agreements and non‑exclusive outbound licenses entered into in the ordinary course of business;
(Cviii) Indebtedness Contract under which the Company or guarantees for Indebtedness, the principal amount Company’s Subsidiary is expected to make annual expenditures or receive annual revenues in excess of which does not exceed $50,000500,000 during the current or subsequent fiscal year;
(ix) IP Contract;
(x) Settlement agreement, or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Bodies or Company Regulatory Agencies that has existing or contingent performance obligations;
(xi) Contract of the Company or its Subsidiary relating to the settlement of any litigation proceeding that provides for any material existing or contingent obligations on the part of the Company or its Subsidiary;
(xii) Contract of the Company or its Subsidiary that prohibits, limits or restricts the payment of dividends or distributions in respect of the capital stock of the Company or its Subsidiary or otherwise prohibits, limits or restricts the pledging of capital stock of the Company or its Subsidiary or prohibits, limits or restricts the issuance of guarantees by the Company or its Subsidiary;
(xiii) Contract providing for any guaranty by the Company or any of its Subsidiaries Subsidiary of third-party obligations obligations;
(under which xiv) Contract providing for the Company issuance or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company sale of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business equity securities of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xv) of this Section 3.13 or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, is referred to herein as a “Company Material Contract.”
(b) The Company Parent has made available been given access to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to be material to the a Company and its Subsidiaries, taken as a whole, Material Adverse Effect: (i) none of the Company is not or its Subsidiary is, or has received written notice that any other party to any Company Material Contract (and to the Company’s knowledge is not alleged to beA) is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any material rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject (ii) there has occurred no event giving to each others any right of the Company Material Contracts is not in breach thereof termination, amendment or in default thereunder. Each cancellation of (with or without notice or lapse of time or both) any such Company Material Contract and (iii) each such Company Material Contract, unless expired pursuant to its terms, is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiary, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date Agreement Date, to the Knowledge of this Agreementthe Company, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As Except as set forth in Section 4.14(a) of the date Disclosure Schedule, in the exhibit index to ABC's Annual Report on Form 10-K for the fiscal year ended July 31, 1997 or in the exhibit index of this Agreementany Quarterly Report on Form 10-Q or Current Report on Form 8-K filed with the SEC since July 31, none of the Company or 1997, neither ABC nor any of its Subsidiaries or, to ABC's knowledge, any of its Affiliated Entities is a party to or is bound by any:
any contract, arrangement, commitment or understanding (whether written or oral) (i) “with respect to the employment of any director, officer, employee or consultant which, solely in the case of employees or consultants, provide for payments in excess of $125,000 per annum or cannot be terminated upon 30 days' or less notice without penalty or premium, (ii) which, upon consummation of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional acts or events) result in any payment (including, without limitation, severance payments, golden parachute payments, change in control payments, unemployment compensation payments or otherwise) becoming due from ABC or any of its Affiliated Entities, NACO, the Surviving Corporation, or any of their respective Subsidiaries, to any director, officer or employee (current, former or retired) thereof, (iii) which is a material contract” contract (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to be performed after the Company date of this Agreement, (iv) which is a contract or agreement not otherwise described by clause (iii) hereof involving the payment of more than $125,000 per annum, (v) which materially restricts the conduct of any line of business by ABC or any of its Subsidiaries that was required or, to beABC's Knowledge, but has any of its Affiliated Entities or, (vi) under which any of the benefits will be increased, or the vesting of the benefits 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. Each contract, arrangement, commitment or understanding of the type described in this Section 4.14(a), whether or not been, filed with set forth in Section 4.14(a) of the SEC with Disclosure Schedule or in the Company’s Annual Report on exhibit index to ABC's Form 10-K for the fiscal year ended December July 31, 20231997, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating is referred to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining herein as an "ABC Contract." ABC has previously delivered to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms NACO ------------ true and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case correct copies of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any ABC Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would notset forth in Section 4.14(b) of the Disclosure Schedule, (i) each ABC Contract is valid and binding and in full force and effect, (ii) ABC and each of its Subsidiaries and Affiliated Entities have performed all obligations required to be performed by it to date under each ABC Contract, except where such noncompliance, individually or in the aggregate, has not had and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as have a wholeMaterial Adverse Effect, (iiii) the Company is not (and to the Company’s knowledge is not alleged to be) in breach no event or condition exists which constitutes or, after notice or lapse of time or default under any Contract listedboth, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreementconstitute, a “Company Material Contract” and, collectively, material default on the “Company Material Contracts”) and (ii) to the Company’s knowledge, as part of the date of this Agreement, the parties other than the Company ABC or any of its Subsidiaries or, to each ABC's Knowledge, any of the Company Material Contracts is not in breach thereof its Affiliated Entities under any such ABC Contract, except where such default, individually or in default thereunder. Each Company the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect and (iv) no other party to such ABC Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) andis, to the Company’s knowledgeKnowledge of ABC, each other party thereto. As of in default in any respect thereunder, except where such default, individually or in the date of this Agreementaggregate, no party has not had and would not reasonably be expected to any Company have a Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) As Schedule 2.8(a) sets forth a complete and accurate list of the date of this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or each Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant described below to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property properties is used by the Company party or one of its Subsidiaries in the conduct of its business as currently conducted is otherwise bound or subject (each, a “Company In-LicenseMaterial Contract” and collectively, the “Material Contracts”): (i) any Contract that creates a partnership or a joint venture or arrangement that involves a sharing of profits with any other Person; (Bii) licenses any Intellectual Property owned Contract that purports to or has the effect of limiting either the Company’s right to engage in-licensed , or compete with any Person in, any business; (iii) any Contract involving the incurrence by the Company or any of its Subsidiaries to another Person Liabilities (other than an Affiliate), except non-exclusive licenses that are granted Liabilities to render services to customers in the ordinary course of business to service providers, contract manufacturing organizations business) in any one transaction or customers series of Company or related transactions in excess of $25,000; (iv) any Contract creating any Lien on any of its Subsidiaries;
the Shares; (viiiv) any Contract pursuant to which the Company or has guaranteed any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payablesindebtedness; (Bvi) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), any Contract not made in the ordinary course of business; (vii) any Contract granting any preferential rights to purchase or acquire any interest in any of Company’s assets, property or rights or requiring consent of any party to the transfer and assignment of any such assets, property or rights; (viii) any Contract that contains a “most favored nation” or “most favored customer” clause; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (Aix) any guaranty by the Company leases of any properties or assets of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into including any Contract of the type described in the foregoing clauses (i) through (xiv)creating an Lien on such property or assets.
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeset forth on Schedule 2.8(b), (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of of, or default under under, any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) each Material Contract, to the Company’s knowledge, as Knowledge of the date of this AgreementCompany, the is valid and binding upon parties thereto other than the Company or in accordance with its terms.
(c) No party to any Material Contract (i) has provided any written notice to the Company of its Subsidiaries intent to each terminate, or withdraw its participation in, any such Material Contract, (ii) has, to the Knowledge of the Company Company, threatened to terminate, or withdraw from participation in, any such Material Contracts is not Contract or (iii) is, to the Knowledge of the Company, in breach thereof or default in default thereunder. Each Company Material Contract is legal and in full force and effect and is validany material respect under any provision thereof, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge Knowledge of the Company, any notice no event or condition has occurred, whether with or without the passage of time or the giving of notice, or both, that would constitute such a breach or default.
(whether or not writtend) Except as set forth on Schedule 2.8(d),the execution, delivery and performance of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result this Agreement and the consummation of the transactions contemplated hereby will not (i) result in or otherwise)give to any Person any right of termination, non-renewal, cancellation, withdrawal, acceleration or modification in or with respect to any Material Contract, (ii) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated guaranteed or other change in payments under any Material Contract or (iii) result in the creation or imposition of any Actions upon the Company or any Lien upon any of the property or assets of the Company under the terms of any Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vishay Precision Group, Inc.)
Contracts and Commitments. (a) As of the date For purposes of this Agreement, none each of the following shall be deemed to constitute a "Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract":
(i) “material contract” (as such term any Company Contract that is defined in Item 601(b)(10) of Regulation S-K required by the rules and regulations of the SECSEC to be filed as an exhibit to the Company SEC Reports;
(ii) with any Company Contract relating to the employment of any employee, and any Contract pursuant to which the Company or any Company Subsidiary is or may become obligated to make any severance, termination, bonus or relocation payment or any other payment (other than payments in respect of salary) in excess of $125,000, to any current or former employee or director;
(iii) any Company Contract relating to the acquisition, transfer, development, sharing or license of any material Proprietary Asset (except for any Company Contract pursuant to which (A) any material Proprietary Asset is licensed to the Company or any of its Subsidiaries that was required under any third party software license generally available for sale to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023public, or (B) any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with material Proprietary Asset is licensed by any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person on a non-exclusive basis);
(iv) any Company Contract which provides for indemnification of any officer, director or employee;
(v) any Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(vi) any Company Contract that involves the payment or expenditure of $750,000 that may not be terminated by the Company (or its Subsidiary, as the case may be) (without penalty) within 60 days after the delivery of a termination notice by the Company (or its Subsidiary, as the case may be);
(vii) any Company Contract contemplating or involving (A) the payment or delivery of cash or other consideration in any geographical areaan amount or having a value in excess of $750,000 in the aggregate, or (B) obligating the performance of services having a value in excess of $750,000 in the aggregate; or
(viii) any Company or Contract imposing any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons restriction on the right to manufacture, sell, market or distribute any Product ability of the Company or any of its SubsidiariesCompany Subsidiary to (A) compete with any other Person, in each case(B) acquire any material product or other material asset or any services from any other Person, on an exclusive basis sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any geographical area, (D) containing other manner with any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiariesother Person, or (EC) grants any rights of first refusal, right of first offer, right of negotiation develop or similar right to acquire rights or ownership with respect to distribute any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreementtechnology;
(ix) mortgagesany Company Contract involving interest rate swaps, indenturescaps, guarantees, loans floors or credit agreements, security option agreements or any other Contracts relating to the borrowing of money interest rate risk management arrangement or extension of credit, other than (A) accounts receivables and payablesforeign exchange contract; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;and
(x) Contract providing for any guaranty by the other Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose if a breach of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material Company Contract could reasonably be expected to the business of the have a Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)Material Adverse Effect.
(b) The Company has made available to Parent a true and correct copy of all written Each Company Material Contracts, together with any Contract is valid and all amendments thereof in full force and waivers thereundereffect, and a correct and complete written summary setting forth is enforceable in accordance with its terms.
(c) Neither the terms and conditions of each oral Company nor any Company Subsidiary has violated or materially breached, or committed any default under, any Company Material Contract. To the Company's knowledge, no other Person has materially violated or breached, or committed any default under, any Company Material Contract.
(cd) Except as would notNo event has occurred, individually and no circumstance or in the aggregatecondition exists, that (with or without notice or lapse of time) could reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) result in a violation or breach of any provision of any Company Material Contract; (ii) give any Person the right to declare a default or exercise any remedy under any Company is not Material Contract; (and iii) to the Company’s knowledge is not alleged 's knowledge, give any Person the right to be) receive or require a material rebate, chargeback, penalty or change in breach of or default delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Company Material Contract; or (v) give any Person the right to cancel, terminate or modify any Company Material Contract.
(e) Neither the Company nor any Company Subsidiary is party to a Government Contract listed, and none of them has submitted a Government Bid.
(f) Schedule 4.14 of the Company Disclosure Statement provides a list of all Company Material Contracts (including all amendments thereto) not otherwise included in the Company SEC Reports. The Company has provided or required made available to be listed, Buyer a copy of each Company Material Contract (including all amendments thereto) listed in Section 3.12(aSchedule 4.14 (f) of the Company Disclosure Letter (eachStatement, together with any Contract entered into after the date of this Agreement but would be required other than Company Material Contracts filed as Exhibits to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as SEC Reports and all copies of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) all amendments to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against filed as exhibits to the Company and its Subsidiaries (SEC Reports, to the extent party thereto) and, to such amendments have not been filed with the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)SEC.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Spectrian Corp /Ca/)
Contracts and Commitments. (a) As Section 4.12 of the Company Disclosure Letter identifies each Contract that constitutes a Company Material Contract as of the date of this Agreement. For purposes of this Agreement, none each of the following shall be deemed a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term is defined in Item 601(b)(10601 (b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiary that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementK;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty U.S. jurisdictions) (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees“Labor Agreements”);
(iii) Contract establishing or relating to the acquisition formation, creation, operation, management or disposition control of any product linejoint venture, business partnership, collaboration or material asset of the Company or any of its Subsidiariessimilar arrangement, in each case, with obligations remaining that is reasonably likely to be performed or Liabilities continuing after the date result in payments in excess of this Agreement$500,000;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services with a value in excess of $250,000, or to sell any material product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the (1) exclusive right to develop, manufacture, sell, market or distribute the Product, or (2) non-exclusive right to develop, manufacture, sell, market or distribute the Product (excluding, solely for subclause (C)(2), any Product Routine Services Contracts entered into in the ordinary course of business), (D) provides for “exclusivity” or any similar requirement in favor of any Person or group of Persons or in any geographical area or (E) requiring the Company or any of its SubsidiariesAffiliates (including, in each casefollowing the Closing, Parent or any of its Affiliates) to conduct any business on an exclusive basis in any geographical area, (D) containing any a “most favored nations” basis with any Person;
(v) Contract in respect of Indebtedness of $100,000 or similar preferential terms and conditions (including with respect to pricing) granted more, or any loan by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesother Person;
(vi) Contract (Aother than a Company Plan) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of between the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the CompanySubsidiary, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities;
(viii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets;
(ix) Contract that contains any standstill or similar agreement pursuant to which the Company or its Subsidiary has agreed not to acquire assets or securities of another Person, except for any Contract that is a nondisclosure agreement entered in connection with discussions, negotiations and transactions related to this Agreement or other Acquisition Proposal;
(x) (A) Contract and (B) open purchase order entered into in the last 12 months prior to the date of the Agreement, in each case, for payments that remain or may become due of $500,000 or more (such Contracts and purchase orders, or work orders, change orders or master services agreements relating to the same, the “Purchase Orders”) other than, in each case, a Company Plan;
(xi) Corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with Governmental Bodies that have existing or contingent performance obligations;
(xii) Contract of the Company Real Property leaseor its Subsidiary relating to the settlement, conciliation or similar agreement with any Governmental Body or Person that provides for payments in excess of $250,000, or that provides for any continuing material obligations on the part of the Company or its Subsidiary;
(xiii) Contract under which of the Company and or its Subsidiary that prohibit, limit or restrict the Company’s Subsidiaries made annual expenditures payment of dividends or received annual revenues distributions in excess respect of $500,000 during the 2024 fiscal yearCompany Securities, or otherwise prohibit, limit or restrict the pledging of Company Securities, or prohibit, limit or restrict the issuance of guarantees by the Company or its Subsidiary other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiv) stockholders’, investors rights’, registration rights or similar Contract between (excluding Contracts governing Company Stock Options or Company RSUs);
(xv) Contract (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company or its Subsidiary leases or subleases any real property;
(xvi) Contract with or binding upon the Company, its Subsidiary or any of its respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xvii) IP Contract;
(xviii) Contract with any academic institution, research center or Governmental Body (excluding any Routine Services Contracts entered into in the ordinary course of business) that relates to any Owned Intellectual Property or any other material Company Intellectual Property (or the research or development of any of the Company’s Subsidiariesforegoing or the funding for such research or development activities);
(xix) Contract with respect to commercialization, on the one handmanufacturing, and any Governmental Bodycollaboration, on the other handco-promotion, other than discovery, development or profit sharing (including any such Contracts with any third-party payor or any third party contract research organization that directly conducts clinical trials and excluding any such Contracts that do not contemplate any of (i) the primary purpose of which is the sale assignment of any Products Intellectual Property by the Company to any other Person, (ii) royalties or Services other revenue or profit sharing arrangements or (iii) the transfer or licensing of Company Intellectual Property other than non-exclusive licenses incidental to the performance of services under such Governmental Body; orContract);
(xvxx) Contract pursuant to which the Company or its Subsidiary has continuing guarantee, “earn-out” or similar contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or its Subsidiary, in each case, that could result in payments in excess of $500,000;
(xxi) Contract that obligates the Company or its Subsidiary to make any capital commitment or capital expenditure in an amount in excess of $500,000;
(xxii) Contract or offer letter that is for the employment of any directors, officers or employees at annual base salary in excess of $250,000;
(xxiii) Contract with any independent contractor or consultant involving annual payments in excess of $150,000; and
(xxiv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)foregoing.
(b) The Company has made available to Parent a A true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material ContractContract has been made available to Parent.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the not have a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect, (i) neither the Company is not nor its Subsidiary (and A) is, or has received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under and (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not Contract (excluding expiration of any Contract in breach thereof or in default thereunder. Each accordance with its terms) and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiary, as applicable, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreementhereof, none of the Company SeaSpine or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company SeaSpine or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the CompanySeaSpine’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SeaSpine SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition by SeaSpine or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement, other than in the ordinary course of business consistent with past practice, or (2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in liabilities to SeaSpine and its Subsidiaries in excess of $500,000 or (B) pursuant to which SeaSpine or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than SeaSpine’s Subsidiaries;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company SeaSpine or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company SeaSpine or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, party or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company SeaSpine or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical areaarea but excluding any distribution, (D) containing any “most favored nations” sales representative, sales agent or similar preferential terms and conditions (including with respect to pricing) granted by the Company agreement under which SeaSpine or any of its Subsidiaries, Subsidiaries has granted a Person an exclusive geographical area and under which SeaSpine paid commissions less than $1,000,000 to such Person in 2021 or (E) grants any rights from whom SeaSpine received less than $2,000,000 from the sale of first refusal, right of first offer, right of negotiation or similar right product to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariessaid Person in 2021;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company SeaSpine or any of its Subsidiaries (A) licenses any material Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property Person that is used by the Company SeaSpine or one of its Subsidiaries in the conduct of its business as currently conducted that could reasonably require payment by SeaSpine or any of its Subsidiaries of royalties or license fees exceeding $250,000 in any twelve (each12) month period, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company SeaSpine or any of its Subsidiaries to another Person (other than an Affiliate)Person, except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesconsistent with past practice;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ixvii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditcredit of $1,000,000 or more, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-owned Subsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000business consistent with past practice;
(xviii) Contract providing for any guaranty by the Company SeaSpine or any of its Subsidiaries of third-party obligations (under which the Company SeaSpine or any of its Subsidiaries has continuing obligations as of the date hereof) of this Agreement)$500,000 or more, other than (A) any guaranty by the Company of SeaSpine or any of its Subsidiaries’ of obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company SeaSpine or any of its Subsidiaries;
(xiix) Contract between the CompanySeaSpine, on the one hand, and any Affiliate of the Company SeaSpine (other than a Subsidiary of the CompanySeaSpine), on the other hand;
(xiix) Company Real Property leaseContract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than SeaSpine or its Subsidiaries;
(xiiixi) Contract under which the Company SeaSpine and the CompanySeaSpine’s Subsidiaries made are expected to make annual expenditures expenditures, excluding sales commissions, or received receive annual revenues in excess of $500,000 2,000,000 during the 2024 current or a subsequent fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xvxii) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xivxi).
(b) The Company Orthofix has made available been given access to Parent a true and correct copy of all written Company SeaSpine Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company SeaSpine Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as have a wholeSeaSpine Material Adverse Effect, (i) the Company SeaSpine is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company SeaSpine Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company SeaSpine Material Contract” and, collectively, the “Company SeaSpine Material Contracts”) and (ii) to the CompanySeaSpine’s knowledge, as of the date of this Agreementhereof, the parties other than the Company SeaSpine or any of its Subsidiaries to each of the Company SeaSpine Material Contracts is not in breach thereof or in default thereunder. Each Company SeaSpine Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company SeaSpine and its Subsidiaries (to the extent party thereto) and, to the CompanySeaSpine’s knowledge, each other party thereto. As of the date of this Agreementhereof, no party to any Company SeaSpine Material Contract has given any written notice, or to the knowledge of the CompanySeaSpine, any notice (whether or not written) of termination or cancellation of any Company SeaSpine Material Contract or that it intends to seek to terminate or cancel any Company SeaSpine Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this AgreementExcept as set forth on Schedule 2.12, none of neither the Company or any of its Subsidiaries the Subsidiary (i) is a party to any collective bargaining agreement or bound contract with any labor union, (ii) is a party to any written or oral contract for the employment of any officer, individual employee or other person on a full-time or consulting basis, or relating to severance pay for any such person, (iii) is a party to any (A) written or oral agreement or understanding to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets) or (B) agreement for the sale of any capital asset, (iv) is a party to any contract, arrangement, commitment or understanding (whether written or oral) which provides for future payments by any:
the Company or the Subsidiary in excess of $50,000 and is not terminable by the Company within 60 days without payment of a penalty or premium, other than employment contracts, benefit plans and leases otherwise disclosed in Schedule 2.12 or in another Schedule to this Agreement or listed as an exhibit in the Company Public Reports, (iv) “is a party to any contract, arrangement, commitment or understanding which is a material contract” contract (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
Agreement that has not been filed or incorporated by reference in the Company Public Reports, (ivvi) Contract establishing is a party to any joint ventures, partnerships, profit shares, material collaborations confidentiality agreement or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of any agreement which prohibits the Company or any of its Subsidiaries to compete the Subsidiary from freely engaging in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, anywhere in the case of this clause (B)world, providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant is a party to which the Company any agreement or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts indenture relating to the borrowing of money or extension of creditto mortgaging, other than (A) accounts receivables and payables; (B) loans to direct pledging or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or otherwise placing a lien on any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business assets of the Company or the Subsidiary, (viii) has guaranteed any of its Subsidiaries;
(xi) Contract between the Company, on the one handobligation for borrowed money, and (ix) is a party to any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures agreement or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the contract that obligates Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services Subsidiary to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)pay a customer consequential damages.
(b) The Except as disclosed on Schedule 2.12, each of the Company and the Subsidiary has made available performed all obligations required to Parent a true and correct copy of all written Company Material Contracts, together be performed by it prior to the date hereof in connection with any and all amendments thereof and waivers thereunderthe contracts or commitments set forth on Schedule 2.12, and a correct and complete written summary setting neither the Company nor the Subsidiary is in receipt of any claim of default under any contract or commitment set forth the terms and conditions of each oral Company Material Contract.
(c) Except as on Schedule 2.12, except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as have a whole, (i) the Company is not (and to Material Adverse Effect on the Company’s knowledge is not alleged .
(c) Prior to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, Acquiror has been given an opportunity to review a “Company Material Contract” andtrue and correct copy of each written contract or commitment, collectivelyand a written description of each oral contract or commitment, the “Company Material Contracts”) and (ii) to the Company’s knowledgeset forth on Schedule 2.12, as of the date of this Agreementtogether with all amendments, the parties waivers or other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party changes thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As Except as set forth on Schedules 2.2(b), 2.4, 2.12 or 2.20(b), as of the date of this Agreement, none the Company does not have, is not a party to nor is it bound by: any collective bargaining agreements, any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations, any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement with a firm or other organization, any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, any fidelity or surety bond or completion bond, any lease of personal property involving annual payments by the Company in any individual case in excess of $50,000, any agreement of indemnification or guaranty other than pursuant to the Company's standard end-user license agreement, which is attached to the Company Schedule, any agreement containing any covenant limiting the freedom of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete engage in any line of business or to conduct business compete with any Person or in person, any geographical area, (B) obligating the Company or any of its Subsidiaries agreement relating to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively capital expenditures and involving payments required to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted be made by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) Agreement in excess of $150,000, any agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets or any interest in any business enterprise outside the ordinary course of the Company's business, any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts agreements or instruments relating to the borrowing of money by or extension of creditcredit by or to the Company, other than any purchase order or contract for the purchase of raw materials (Anot including in-license of technology) accounts receivables and payables; involving $5,000 or more, any construction contracts, any distribution, joint marketing or development agreement which cannot be canceled without penalty upon notice of sixty (B60) loans days or less, Except for escrow agreements identified on Schedule 2.12, any agreement pursuant to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty agreement that involves payments by the Company of any of its Subsidiaries’ obligations $100,000 or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which more or is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues cancelable without penalty in excess of $500,000 during the 2024 fiscal year;
25,000 within thirty (xiv30) Contract between days. Except as specifically disclosed in the Company or any of the Company’s SubsidiariesSchedule, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of breach, violation or default under any Contract listedunder, or required to be listed, in Section 3.12(a) of and the Company Disclosure Letter (eachhas not between December 31, together with any Contract entered into after 1999 and the date of this Agreement but would be received any written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on Section 3.12(a) of the Company Disclosure Letter if Schedule 2.12 or Schedule 2.11 (any such Contract was in effect as of the date of this Agreementagreement, contract or commitment, a “Company Material "Contract” and") (except for notices relating to breaches, collectivelyviolations or defaults that have been cured or corrected in all material respects). Assuming due execution by the other parties thereto, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against except as otherwise disclosed in the Company and its Subsidiaries (Schedules is not subject to any default thereunder of which the Company has knowledge by any party obligated to the extent party thereto) and, to the Company’s knowledge, each other party Company pursuant thereto. As of Schedule 2.12(A) identifies each Contract that requires a consent, waiver or approval to preserve all rights of, and benefits to, the date of this Agreement, no party to any Company Material Surviving Corporation under such Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of entering into this Agreement or effecting the Merger or the other transactions contemplated hereby or otherwiseby this Agreement (each a "Required Consent").
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Contracts and Commitments. (a) As of the date of this Agreement, none other than as set forth on Section 2.13(a) of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of promulgated under the SECExchange Act) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, publicly filed with the SEC with as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date as of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative bodybody (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(iii) Contract establishing or relating to any joint venture, partnership or similar arrangement;
(iv) Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains is expected to make annual expenditures or receive annual revenues in excess of $100,000 during the services of temporary current or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract a subsequent fiscal year (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (or, at the Effective Time, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (or, after the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any product or service Product exclusively to a single partyparty or exclusively in any geographical area, (C) requiring the Company or any of its Affiliates (or, after the Closing, Parent or any of its Affiliates) to conduct any business on a “most favored nations” basis with any third party or (D) under which the Company or any of its Subsidiaries Affiliates has been granted to any Person or group of Persons granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Affiliates on an exclusive basis to any third party or group of third parties or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(viiv) Contract pursuant to which the Company or any in respect of its Subsidiaries Indebtedness of one million dollars (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”$1,000,000) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, more other than (A) accounts receivables payables and payables; (B) loans to direct or indirect wholly-wholly owned Subsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiariesconsistent with past practices;
(xivi) Contract (other than a Company Plan) between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiiivii) Contract under which relating to the Company and the Company’s Subsidiaries made annual expenditures voting or received annual revenues in excess registration of $500,000 during the 2024 fiscal year;
(xiv) Contract between any securities or ownership of the Company or any of the Company’s its Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or;
(xvviii) Contract containing a right of first refusal, right of first negotiation, right of first offer, option or other similar rights with respect to enter into any Contract (A) securities or other equity interests of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy or any of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as or (B) assets in favor of a whole, (i) party other than the Company is not or its Subsidiaries;
(and to the Company’s knowledge is not alleged to beix) in breach of or default Contract under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than which the Company or any of its Subsidiaries is expected to each make annual expenditures or receive annual revenues in excess of five hundred thousand dollars ($500,000) during the current or a subsequent fiscal year;
(x) Settlement or similar agreement, or agreement entered into in connection with settlement agreements, corporate integrity agreements, consent decrees, deferred prosecution agreements, or other similar types of agreements with Governmental Bodies;
(xi) Contract of the Company Material or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xii) Contract of the Company or any of its Subsidiaries that prohibit, limit, restrict or require the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit, restrict or require the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit, restrict or require the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Stock Plans or any Contracts is not evidencing awards granted under the Company Stock Plans;
(xiii) Company IP Contract;
(xiv) Contract involving any of the (A) fifteen (15) largest merchants of the business of the Company and its Subsidiaries in breach thereof the aggregate and based on transaction volume over the twelve (12) months ending December 31, 2021, (B) ten (10) largest vendors (including third parties granting inbound licenses) to the business of the Company and its Subsidiaries in the aggregate and based on spend in the twelve (12) months ending December 31, 2021, or (C) five (5) largest referral partners to the business of the Company and its Subsidiaries in default thereunderthe aggregate and based on commissions paid in the twelve (12) months ending December 31, 2021;
(xv) Contract that relates to the acquisition or disposition of any assets or any business of the Company or any of its Subsidiaries with a purchase price in excess of one million dollars ($1,000,000) (whether by merger, sale of stock, sale of assets or otherwise) since January 1, 2019 or with respect to which the Company or any of its Subsidiaries has any material outstanding rights or obligations;
(xvi) Contract that involves payments in excess of one hundred thousand dollars ($100,000) per year relating to management or consulting services (other than a Company Plan and excluding employment agreements entered into in the ordinary course of business consistent with past practice); or
(xvii) Contract to enter into any of the foregoing. Each such Contract described in clauses (i) through (xvii) above of this Section 2.13(a), together with each Real Property Lease listed or required to be listed in Section 2.11 of the Company Disclosure Letter, is referred to herein as a “Company Material Contract.”
(b) Except as set forth in Section 2.13(b) of the Company Disclosure Letter or as would not reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries (A) is, or has received written notice that it is or may be, in violation or breach of or default (with or without notice or lapse of time or both) under any Company Material Contract, or has delivered any notice that any other party to any Company Material Contract is legal in violation or breach or default under any Company Material Contract or (B) has waived or failed to enforce any rights or benefits under any Company Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment, acceleration, redemption or cancellation (with or without notice or lapse of time or both) of any such Company Material Contract and (iii) each such Company Material Contract is in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written1) of termination termination, cancellation, breach or cancellation of actual or potential dispute with respect to any Company Material Contract or Contract, (2) that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise) or (3) to the Knowledge of the Company, that it intends to reduce its business with the Company or any of its Subsidiaries (whether as a result of the Contemplated Transactions or otherwise). The Company has made available to Parent prior to the date of this Agreement true, correct and complete copies of each written Company Material Contract in existence as of the date of this Agreement, together with all material amendments, waivers or other changes thereto, and a true, correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Sezzle Inc.)
Contracts and Commitments. Except as set forth in Schedule 4.12, neither the Company nor any Subsidiary of the Company is a party to:
(a) As any material partnership agreements or joint venture agreements;
(b) any agreement requiring the payment of severance with any director, Officer (as defined in Section 4.24) or employee, or any consultant set forth on Schedule 4.9(g);
(c) any non-competition, secrecy or confidentiality agreement relating to the date of this Agreement, none business of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to betheir assets, but has not been, filed with the SEC with any other contract restricting or preventing the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company 's or any of its Subsidiaries, in each case, with obligations remaining ' or Affiliates' right to be performed enter into any line of business involving clinical laboratory products and services or Liabilities continuing after any contract restricting the date Company's or any of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting its Subsidiaries' right to conduct the right business of the Company or any of its Subsidiaries to compete at any time, in any line of business manner or to conduct business with at any Person or place in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiariesworld, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” case other than confidentiality or similar preferential terms and conditions (including with respect to pricing) granted non-disclosure obligations entered into by the Company or its Subsidiaries in the ordinary course of business;
(d) any of its Subsidiariesagreements with any current Officer, director or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business Affiliate of the Company or any of its Subsidiaries;
(vie) (A) Third Party Component Contract or (B) other Contract relating to any agreements for the research, testing, development, commercialization, manufacture or supply sale of any Product of the assets of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business or for the grant to service providers, contract manufacturing organizations or customers any person of Company or any preferential rights to purchase any of its Subsidiariesassets;
(viiif) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts agreement relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty acquisition by the Company or any of its Subsidiaries of third-party obligations any operating business or the assets or capital stock of any other Person entered into during the last twelve (12) months;
(g) any material agreements relating to the incurrence, assumption, surety or guarantee of any Indebtedness;
(h) any material agreements under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), made advances or loans to any other than Person (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations which shall not include advances made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business an employee of the Company or any of its SubsidiariesSubsidiaries in the ordinary course of business consistent with past practice);
(xii) Contract between any other agreement (or group of related agreements) the Company, on the one hand, and any Affiliate performance of which requires aggregate payments to or from the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during 250,000 per year, other than agreements entered into in the 2024 fiscal yearordinary course of business;
(xivj) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and agreements that contain any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than provisions requiring the Company or any of its Subsidiaries to indemnify any other party thereto other than agreements entered into in the ordinary course of business which would not reasonably be expected to have a Company Material Adverse Effect;
(k) any material written agreement for the sale of goods or services to any Governmental Authority other than any participating provider agreement with Medicare, Medicaid, or Federal or State healthcare departments, and a copy of each such agreement has been furnished to or made available as requested by Parent prior to the date of this Agreement;
(l) any material managed care agreements granting any party "most favored nation" status with respect to pricing; or
(m) any agreement under which the Company or any of its Subsidiaries licenses or transfers any rights to any material Intellectual Property rights or under which the Company or any of its Subsidiaries licenses any intellectual property rights of others except for licenses of widely available "shrink wrap," "click wrap" or similarly licensed software. Each of the Company contracts set forth on Schedule 4.12 (the "Material Contracts Contracts") is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is validthe legal, valid and binding and obligation of the Company and/or its Subsidiaries, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). True and complete copies of all Material Agreements have been furnished to or made available as requested by Parent. Neither the Company and nor any of its Subsidiaries (has breached or improperly terminated any such Material Contract, the effect of which would reasonably be expected to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any have a Company Material Contract has given any written noticeAdverse Effect, or and neither the Company nor, to the knowledge of the Company, any third party is in default under any such Material Contract, the effect of which would have a Company Material Adverse Effect. To the Company's knowledge, there exists no condition or event that, after notice (whether or not written) lapse of time or both, would constitute any such breach, termination or cancellation default, the effect of any which would have a Company Material Contract Adverse Effect. Except as set forth on Schedule 4.12, to the Company's knowledge, there is no bid or that it intends contract proposal made by the Company or any of its subsidiaries that, if accepted and entered into, is likely to seek result in a material loss to terminate the Company or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Laboratory Corp of America Holdings)
Contracts and Commitments. (a) As Section 3.13(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, none a correct and complete list of the following contracts to which the Company or any of its the Company Subsidiaries is a party or by which any of their respective assets or properties are bound (such contracts as are required to or bound by any:be set forth in Section 3.13(a) of the Company Disclosure Letter, including (i) any purchase orders, service orders, statements of work, invoices and similar documents (which need not be scheduled on Section 3.13(a) of the Company Disclosure Letter), (ii) exhibits to any Company SEC Documents and (iii) each Real Property listed in Section 3.11 of the Company Disclosure Letter, but excluding each Company Plan, is referred to herein as a “Company Material Contract”):
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its the Company Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December July 31, 2023, 2023 or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating that relates to the acquisition or disposition of any product linebusiness, business a material amount of stock (or material asset other ownership interests) or assets of the Company any other Person or any real property (whether by merger, sale of its Subsidiariesstock, sale of assets or otherwise);
(iii) Contract for (A) the sale or purchase of personal property having a value individually, with respect to all sales or purchases thereunder, in each caseexcess of $2,000,000, other than agreements with obligations remaining respect to be performed or Liabilities continuing after the date sale of this Agreementinventory entered into in the ordinary course of business and (B) the lease of personal property under which the aggregate annual rental payments exceed $2,000,000;
(iv) Contract establishing any joint venturesventure, partnershipspartnership, profit sharesor collaboration, in each case, that contemplates payments in excess of $2,000,000 in any calendar year or which is otherwise material collaborations or similar arrangementsto the Company and the Company Subsidiaries, taken as a whole;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its the Company Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its the Company Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or any of its the Company Subsidiaries has granted to conduct business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis to any Person or group of Persons or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract in respect of Indebtedness of $5,000,000 or (B) more, other Contract relating to the research, testing, development, commercialization, manufacture than intercompany loans or supply of any Product of investments solely among the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by and the Company of at least $100,000 in any prospective twelve (12)-month periodSubsidiaries;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Softwarea Company Plan) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the CompanyCompany Subsidiary), on the other handhand (each, an “Affiliate Contract”);
(viii) Contract relating to the voting or registration of any securities or any stockholders’ or investor rights, tax receivables or similar or related Contract with respect to any securities of the Company or any of the Company Subsidiaries;
(ix) Contract containing a right of first refusal, right of first negotiation or right of first offer, option or other similar rights with respect to any equity interests or assets that have a fair market value or purchase price of more than $2,000,000 in favor of a party other than the Company or the Company Subsidiaries;
(x) Contract of the Company or any of the Company Subsidiaries relating to the settlement or conciliation of any Action with any Governmental Body or that provides for any continuing material obligations on the part of the Company or any of the Company Subsidiaries;
(xi) Contract of the Company or any of the Company Subsidiaries that prohibits, limits or restricts the payment of dividends or distributions in respect of the capital stock of the Company or any of the Company Subsidiaries or otherwise prohibits, limits or restricts the pledging of capital stock of the Company or any of the Company Subsidiaries or prohibits, limits or restricts the issuance of guarantees by the Company or any of the Company Subsidiaries other than the Company Equity Plan or any Contracts evidencing awards granted under the Company Equity Plan;
(xii) Company Real Property leaseContract with any Material Supplier;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal yearwith any Material Customer;
(xiv) Contract between with any Governmental Body, other than any Permits;
(xv) except with respect to the Contracts contemplated by Section 3.13(a)(xiii), any Contract under which the Company or any Company Subsidiary purchases grapes for use in the Business or sells grapes from its vineyard, in each case, involving payments of more than $1,000,000, taken together with all other Contracts with the Company’s Subsidiariessame counterparty, on for the one handfiscal year ended July 31, and 2024;
(xvi) Contract under which the Company or any Governmental BodyCompany Subsidiary provides or receives vineyard management services or farm labor contractor services;
(xvii) Contract relating to agency, on the other handdealer, other sales representative, broker or marketing arrangements, in each case, involving payments of more than any such Contracts the primary purpose of which is the sale of any Products $500,000 per annum;
(xviii) collective bargaining agreement or Services to such Governmental Bodysimilar Contract with a Union (each, a “Labor Agreement”); or
(xvxix) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)foregoing.
(b) The Company has made available to Parent and Merger Sub a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would notnot have a Company Material Adverse Effect, individually or in the aggregate, reasonably be expected to be material to neither the Company and its Subsidiaries, taken as a whole, (i) nor any of the Company is not Subsidiaries (and A) is, or has sent or received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and its Subsidiaries (to or any of the extent party thereto) Company Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written noticenotice of termination, cancellation, non-renewal or breach of, or to the knowledge of the Companydispute with respect to, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate terminate, cancel or cancel fail to renew any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreementhereof, none of the Company Orthofix or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company Orthofix or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the CompanyOrthofix’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company Orthofix SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition by Orthofix or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement, other than in the ordinary course of business consistent with past practice, or (2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in liabilities to Orthofix and its Subsidiaries in excess of $500,000 or (B) pursuant to which Orthofix or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Orthofix’s Subsidiaries;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company Orthofix or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company Orthofix or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, party or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company Orthofix or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical areaarea but excluding any distribution, (D) containing any “most favored nations” sales representative, sales agent or similar preferential terms and conditions (including with respect to pricing) granted by the Company agreement under which Orthofix or any of its Subsidiaries, Subsidiaries has granted a Person an exclusive geographical area and under which Orthofix paid commissions less than $1,000,000 to such Person in 2021 or (E) grants any rights from whom Orthofix received less than $2,000,000 from the sale of first refusal, right of first offer, right of negotiation or similar right product to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariessaid Person in 2021;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company Orthofix or any of its Subsidiaries (A) licenses any material Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property Person that is used by the Company Orthofix or one of its Subsidiaries in the conduct of its business as currently conducted that could reasonably require payment by Orthofix or any of its Subsidiaries of royalties or license fees exceeding $250,000 in any twelve (each12) month period, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company Orthofix or any of its Subsidiaries to another Person (other than an Affiliate)Person, except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesconsistent with past practice;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ixvii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditcredit of $1,000,000 or more, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-owned Subsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000business consistent with past practice;
(xviii) Contract providing for any guaranty by the Company Orthofix or any of its Subsidiaries of third-party obligations (under which the Company Orthofix or any of its Subsidiaries has continuing obligations as of the date hereof) of this Agreement)$500,000 or more, other than (A) any guaranty by the Company of Orthofix or any of its Subsidiaries’ of obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company Orthofix or any of its Subsidiaries;
(xiix) Contract between the CompanyOrthofix, on the one hand, and any Affiliate of the Company Orthofix (other than a Subsidiary of the CompanyOrthofix), on the other hand;
(xiix) Company Real Property leaseContract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Orthofix or its Subsidiaries;
(xiiixi) Contract under which the Company Orthofix and the CompanyOrthofix’s Subsidiaries made are expected to make annual expenditures expenditures, excluding sales commissions, or received receive annual revenues in excess of $500,000 2,000,000 during the 2024 current or a subsequent fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xvxii) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xivxi).
(b) The Company SeaSpine has made available been given access to Parent a true and correct copy of all written Company Orthofix Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Orthofix Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholehave an Orthofix Material Adverse Effect, (i) the Company Orthofix is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a4.12(a) of the Company Orthofix Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Orthofix Material Contract” and, collectively, the “Company Orthofix Material Contracts”) and (ii) to the CompanyOrthofix’s knowledge, as of the date of this Agreementhereof, the parties other than the Company Orthofix or any of its Subsidiaries to each of the Company Orthofix Material Contracts is not in breach thereof or in default thereunder. Each Company Orthofix Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company Orthofix and its Subsidiaries (to the extent party thereto) and, to the CompanyOrthofix’s knowledge, each other party thereto. As of the date of this Agreementhereof, no party to any Company Orthofix Material Contract has given any written notice, or to the knowledge of the CompanyOrthofix, any notice (whether or not written) of termination or cancellation of any Company Orthofix Material Contract or that it intends to seek to terminate or cancel any Company Orthofix Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232020, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement Contract (A) relating to the disposition, license, transfer or Contract with acquisition by the Company or any labor unionof its Subsidiaries of any material tangible assets or business (1) after the date of this Agreement, trade organizationother than the sale of inventory in the ordinary course of business, works council or (2) prior to the date of this Agreement, that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other employee representative body, Contract with a third-party professional employer organization, contingent obligations) or other Contract with any other third party which cannot be terminated with thirty (30B) days’ notice or less, under pursuant to which the Company or any of its Subsidiaries obtains will acquire any ownership interest in, or a material portion of the services of temporary tangible assets or leased employeesbusiness of, any other person or other business enterprise other than the Company’s Subsidiaries;
(iii) Contract relating to the acquisition or disposition of establishing any product linejoint venture, business partnership, material collaboration, material strategic alliance or material asset of the Company or any of its Subsidiariesresearch and development project, excluding, in each case, with obligations remaining to be performed or Liabilities continuing after any material transfer agreements entered into in the date ordinary course of this Agreementbusiness;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries (or, after the Closing, Parent or any of its Affiliates) to engage or compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries (or, after the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell or provide any material product or service exclusively to a single party, (C) under which requiring the Company or any of its Subsidiaries has granted (or, after the Closing, Parent or any of its Affiliates) to conduct any business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(viv) (A) Third Party Component Contract Contracts in respect of Indebtedness for borrowed money, other than loans to direct or (B) other Contract relating to indirect wholly owned subsidiaries, or the research, testing, development, commercialization, manufacture or supply granting of any Product Liens over the property of the Company or any assets of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (Aother than Permitted Liens);
(vi) licenses any Intellectual Property Contract (other than commercially available off-the-shelf Softwarea Company Plan) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contracts (other than a Company Plan listed in Section 4.17(a) of the Company Disclosure Letter) (A) the terms of which obligate or may in the future obligate the Company or any Subsidiary of the Company to make any severance, termination or similar payment to any current or former employee, (B) pursuant to which the Company or any Subsidiary of the Company may be obligated to make any change-in-control, retention or similar payment to any current or former employee or director, or (C) that provides for indemnification (or reimbursement or advancement of legal fees or expenses) of any current or former officer, director or employee of the Company or any of its Subsidiaries;
(viii) collective bargaining agreement or other Contract with any labor union, works council or similar employee representative entity;
(ix) Contract relating to the voting or registration of any securities or any stockholders’, investor rights, tax receivables or similar or related Contracts with respect to any securities of the Company or any of its Subsidiaries;
(x) Contract (other than a Company Plan) containing a right of first refusal, right of first negotiation, right of first offer, option or other similar rights with respect to any assets that have a fair market value or purchase price of more than $500,000, in favor of a party other than the Company or its Subsidiaries;
(xi) Contract (other than a Company Plan) under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $2,000,000 during the current or a subsequent fiscal year;
(xii) Contracts of the Company Real Property leaseor any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xiii) Contract under which Contracts of the Company or any of its Subsidiaries that prohibit, limit, restrict or require the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit, restrict or require the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit, restrict or require the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiv) Contracts with third party manufacturers and suppliers for the Company’s Subsidiaries made annual expenditures manufacture or received annual revenues supply of materials or products in the supply chain for Key Products that involve payments in excess of $500,000 during the 2024 current or a subsequent fiscal year;
(xivxv) Contract between Contracts under which the Company or any or its Subsidiaries has, directly or indirectly, made any loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than investments in marketable securities and advances of business expenses in the ordinary course of business);
(xvi) Contracts that (A) provide for the research, development, commercialization or manufacture of any Key Product and (B) (1) are material the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services 's business with respect to such Governmental BodyKey Product or (2) involve payments in excess of $2,000,000 during the current or a subsequent fiscal year;
(xvii) Government Contracts; or
(xvxviii) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xviii) above of this Section 4.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease required to be listed in Section 4.11(b) of the Company Disclosure Letter and each IP Contract, is referred to herein as a “Company Material Contract.”
(b) The Company Parent has made available been given access to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would notNeither the Company nor any of its Subsidiaries (A) is, individually or in the aggregatenor, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to Knowledge of the Company’s knowledge is not alleged , any other party to be) any Company Material Contract is, in material violation or material breach of or material default under any Contract listed(nor, or required to be listed, in Section 3.12(a) the Knowledge of the Company Disclosure Letter (eachCompany, together does any condition exist that, with any Contract entered into after the date or without notice or lapse of this Agreement but time or both, would be required to be set forth on Section 3.12(a) of result in the Company Disclosure Letter if or any of its Subsidiaries or any such other party being in material violation or material breach or material default under) any Company Material Contract was in effect as of the date of this Agreement, a “or (B) has waived or failed to enforce any material rights or material benefits under any Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) there has occurred no event giving to the Company’s knowledge, as of the date of this Agreement, the parties any party to any Company Material Contract other than the Company or any of its Subsidiaries to each any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written noticenotice of termination, cancellation or breach of, or to the knowledge of the Companydispute with respect to, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As Except for contracts, commitments, plans, agreements and licenses described (without the names of any customers of the date Company who are parties thereto) in Schedule 2.14(a), Schedule 2.13(b), Schedule 2.13(c) or Schedule ---------------- ---------------------------------- ----------- 2.15 of this Agreementthe Company Disclosure Schedule (correct and complete copies of which, none ---- if written, have been made available to the Parent) and except for contracts, commitments, plans, agreements and licenses not presently in effect, neither the Company nor any Subsidiary is a party to or subject to:
(i) any contract or agreement for the purchase of any commodity, material, equipment or asset, except for the Company's proposed investment in serverfarm equipment for its Comprende products and purchase orders in the ordinary course for less than $10,000 each, such orders not exceeding in the aggregate $50,000;
(ii) any other contracts or agreements creating any obligations of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed Subsidiary after the date of filing the Base Balance Sheet of $20,000 or more with respect to any such Form 10-K until contract or agreement, other than sales and purchase commitments in the date ordinary course of this Agreement;
(ii) collective bargaining agreement or Contract business and consistent with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employeespast practice;
(iii) Contract relating to any contract or agreement providing for the acquisition purchase of all or disposition substantially all of its requirements of a particular product from a supplier;
(iv) any product linematerial contract or agreement which by its terms does not terminate or is not terminable without penalty by the Company or any Subsidiary (or its successor or assign) within 90 days after the date hereof;
(v) any contract or agreement for the sale, license or lease of its products not made in the ordinary course of business and consistent with past practice;
(vi) any contract with any sales agent or material asset distributor of products of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementSubsidiary;
(ivvii) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially contract containing covenants limiting the right freedom of the Company or any of its Subsidiaries Subsidiary to compete in any line of business or to conduct business with any Person person or in entity;
(viii) any geographical areamaterial license or franchise agreement (as licensor or licensee or franchisor or franchisee);
(ix) any arrangement or obligation with respect to the return of inventory or merchandise other than on account of a defective condition, incorrect quantities or missed delivery dates; or
(Bx) obligating any contract, subcontract or other agreement with any agency of the United States government or other governmental entity .
(b) Neither the Company nor any Subsidiary is in material default under any contracts, commitments, plans, agreements or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (Clicenses described in Schedule -------- 2.14(a) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by Disclosure Schedule nor does the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply have knowledge ------- of any Product of the Company termination, cancellation, limitation or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to modification or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (change other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providersin any business relationship with any material supplier or customer. For the purposes hereof, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term a supplier is material if it accounted for more than $25,000 of the Contract from and after the date orders of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (for purchases of raw materials and other products essential to its manufacturing processes during either of fiscal year 1996 or 1997 or during the extent party thereto) andthree months ended March 31, to the Company’s knowledge, each other party thereto1998. As A customer is material if it accounted for more than $25,000 of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge orders of the CompanyCompany and its Subsidiaries in either fiscal year 1996 or 1997 or during the three months ended March 31, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)1998.
Appears in 1 contract
Sources: Merger Agreement (Lernout & Hauspie Speech Products Nv)
Contracts and Commitments. (a) As of the date of this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232022, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement Contracts (A) relating to the disposition or Contract with acquisition by the Company or any labor unionof its Subsidiaries of a material amount of assets that contains any material ongoing obligations (including indemnification, trade organization, works council “earn-out” or other employee representative bodycontingent obligations) that are still in effect, Contract with other than the sale of inventory in the ordinary course of business or (B) (other than a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30Company Plan) days’ notice or less, under pursuant to which the Company or any of its Subsidiaries obtains will acquire any material ownership interest in any other person or other business enterprise other than the services of temporary or leased employeesCompany’s Subsidiaries;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract Contracts (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nation” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(viiv) (A) Third Party Component Contract Contracts in respect of Indebtedness of $500,000 or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditmore, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-wholly owned Subsidiariessubsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(xv) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (Aa Company Plan) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xiivi) Company Real Property leaseContract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of capital stock or other equity interests or securities;
(xiiivii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets in favor of a party other than the Company or its Subsidiaries;
(viii) Contract (other than a Company Plan) under which the Company and the Company’s or any of its Subsidiaries made is expected to make annual expenditures or received receive annual revenues in excess of $500,000 during the 2024 current or a subsequent fiscal year;
(ix) Contracts of the Company or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(x) Contracts of the Company or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit or restrict the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xi) collective bargaining, works council or other similar labor agreement or Contract with a labor union;
(xii) Contracts (A) for the employment or engagement of any individual on a full-time, part-time, consulting or other basis that provides for annual base compensation of $300,000 or more (other than any “at-will” agreements that may be terminated by the Company or any of its Subsidiaries without liability or advance notice), or (B) with a current or former Service Provider that provides for transaction, change in control, retention or severance payments or benefits or other similar payments or benefits;
(xiii) Contracts with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Products that involve payments in excess of $500,000 during the current or a subsequent fiscal year;
(xiv) Contract IP Contracts;
(xv) Contracts relating to any joint venture, strategic alliance, partnership or similar agreement;
(xvi) Contracts between or among the Company or any of the Company’s its Subsidiaries, on the one hand, and any Governmental Bodydirectors, executive officers (as such term is defined in the Exchange Act) or any beneficial owner of five percent (5%) or more of any class of Shares (other than the Company) or any Affiliate of the foregoing (or, to the Knowledge of the Company, any immediate family member of any of the foregoing), on the other hand, other than ;
(xvii) Contracts with any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xvxviii) Contract Contracts to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv).
(bxviii) The above of this Section 3.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company has made available to Parent a true and correct copy of all written Company Material ContractsSEC Documents, together with any and all amendments thereof and waivers thereundereach Company Real Property lease listed in Section 3.11(b) of the Company Disclosure Letter, and is referred to herein as a correct and complete written summary setting forth the terms and conditions of each oral “Company Material Contract.”
(ci) Except as would not, individually or in the aggregate, not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (iA) the is, or has received written notice that any other party to any Company is not (and to the Company’s knowledge is not alleged to be) Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As Except (x) for this Agreement, (y) as set forth in Section 2.12(a) of the Company Disclosure Letter, or (z) for Non-Scheduled Contracts, as of the date of this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any:any (each, a “Company Material Contract” and, collectively, the “Company Material Contracts”):
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employeesU.S. jurisdictions);
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, or material collaborations partnerships or similar arrangements;
(viv) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries or, to the knowledge of the Company, Affiliates, to compete in any line of business or to conduct business with any Person or in any geographical area, or (B) obligating Contracts which are material to the Company which obligate the Company or any of its Subsidiaries or, to the knowledge of the Company, Affiliates, to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, ; or (C) under which Contract that constitutes a Company Material Contract pursuant to clauses (viii), (x) or (xi) below containing and limiting the right of the Company or any of its Subsidiaries has granted pursuant to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nationsnation” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries“exclusivity” provisions;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ixv) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditcredit or other Indebtedness of $250,000 or more, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B)case, in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000business consistent with past practice;
(xvi) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement)) of $250,000 or more, other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xivii) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiiiviii) Contract under which the Company and the Company’s Subsidiaries made are expected to make annual expenditures in excess of $500,000 or received receive annual revenues in excess of $500,000 750,000 during the 2024 current or a subsequent fiscal year;
(xivix) Contract between pursuant to which any license or other rights in or to Intellectual Property is granted to or by the Company or any of the Company’s its Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than (A) non-exclusive licenses for commercially available “off-the-shelf” Software with annual or one-time fees of less than $500,000, (B) licenses of Open Source Software, (C) non-exclusive licenses of Intellectual Property granted or received that are incidental to the subject matter of the agreement or in connection with products or services provided to or received by Company or any such Contracts of its Subsidiaries, (D) intercompany licenses granted to or received by and among Company and any of its Subsidiaries and (E) non-exclusive licenses granted to customers in the primary purpose ordinary course of which is the sale of any Products or Services to such Governmental Bodybusiness; or
(x) with any customer of the Company or any of its Subsidiaries who, in the twelve month period ended September 30, 2025, was one of the twenty (20) largest sources of revenues for the Company and its Subsidiaries, based on amounts paid or payable (excluding any purchase orders entered into in the ordinary course of business);
(xi) with any vendor of the Company or any of its Subsidiaries who, in the twelve month period ended September 30, 2025, was one of the twenty (20) largest sources of payment obligations for the Company and its Subsidiaries, based on amounts paid or payable (excluding any purchase orders entered into in the ordinary course of business);
(xii) Contract relating to the disposition to a third party, or acquisition from a third party, of material equity or assets by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(xiii) that is an agreement in settlement of a pending, threatened or actual Action, that imposes material obligations on the Company or any of its Subsidiaries as of the date hereof;
(xiv) (A) any state or local Government Contract requiring aggregate payments by or to the Company in excess of $50,000 for the twelve month period ended September 30, 2025 and (B) any federal Government Contract;
(xv) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act; and
(xvi) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xivxv).
(b) The Prior to the date hereof, the Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, Contracts and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the have a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no No party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Sources: Merger Agreement (On24 Inc.)
Contracts and Commitments. (a) As Section 4.12 of the Company Disclosure Letter identifies each Contract that constitutes a Company Material Contract as of the date of this Agreement. For purposes of this Agreement, none each of the following shall be deemed a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term is defined in Item 601(b)(10601 (b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiary that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty U.S. jurisdictions) (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees“Labor Agreements”);
(iii) Contract establishing or relating to the acquisition formation, creation, operation, management or disposition control of any product linejoint venture, business partnership, collaboration or material asset of the Company or any of its Subsidiariessimilar arrangement, in each case, with obligations remaining that is reasonably likely to be performed or Liabilities continuing after the date result in payments in excess of this Agreement$500,000;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services with a value in excess of $250,000 (excluding purchase orders entered in the ordinary course of business), or to sell any material product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the (1) exclusive right to develop, manufacture, sell, market or distribute any Product Products, or (2) non-exclusive right to develop, manufacture, sell, market or distribute any Products (excluding, solely for subclause (C)(2), any Routine Services Contracts entered into in the ordinary course of business), (D) provides for “exclusivity” or any similar requirement in favor of any Person or group of Persons or in any geographical area or (E) requiring the Company or any of its SubsidiariesAffiliates (including, in each casefollowing the Closing, Parent or any of its Affiliates) to conduct any business on an exclusive basis in any geographical area, (D) containing any a “most favored nations” basis with any Person;
(v) Contract in respect of Indebtedness of $100,000 or similar preferential terms and conditions (including with respect to pricing) granted more, or any loan by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesother Person;
(vi) Contract (Aother than a Company Plan) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of between the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the CompanySubsidiary, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xiivii) Company Real Property leaseContract relating to the voting or registration of any securities;
(xiiiviii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets;
(ix) Contract that contains any standstill or similar agreement pursuant to which the Company or its Subsidiary has agreed not to acquire assets or securities of another Person;
(x) Contract under which the Company and the Company’s Subsidiaries or its Subsidiary has made annual expenditures or received or expects to make or receive annual revenues payments in excess of $500,000 during the 2024 current or a subsequent fiscal yearyear other than, in each case, a Company Plan;
(xi) Corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with Governmental Bodies that have existing or contingent performance obligations;
(xii) Contract of the Company or its Subsidiary relating to the settlement, conciliation or similar agreement with any Governmental Body or Person that provides for payments in excess of $250,000, or that provides for any continuing material obligations on the part of the Company or its Subsidiary;
(xiii) Contract of the Company or its Subsidiary that prohibit, limit or restrict the payment of dividends or distributions in respect of the Company Securities, or otherwise prohibit, limit or restrict the pledging of Company Securities, or prohibit, limit or restrict the issuance of guarantees by the Company or its Subsidiary other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiv) stockholders’, investors rights’, registration rights or similar Contract between the (excluding Contracts governing Company Stock Options or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; orCompany Restricted Stock);
(xv) Contract (including all amendments, extensions and renewals with respect thereto) pursuant to enter into which the Company or its Subsidiary leases or subleases any material real property;
(xvi) Contract with or binding upon the Company, its Subsidiary or any of its respective properties or assets that is of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but that would be required to be set forth on Section 3.12(a) disclosed under Item 404 of Regulation S-K under the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).Securities Act;
Appears in 1 contract
Sources: Merger Agreement (Akouos, Inc.)
Contracts and Commitments. (a) As Section 3.10 of the Disclosure Schedules sets forth a true, complete and correct list, as of the date of this Agreement, none of all of the following Contracts to which an Acquired Company or any (or, in the case of its Subsidiaries (vi) - (vii), Seller Parent) is a party to or bound by anyand fall within the following categories:
(i) “material contract” Contracts relating to Indebtedness (whether outstanding or as such term is defined in Item 601(b)(10may be incurred) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementAcquired Companies;
(ii) Contracts with any Seller or any of their respective Affiliates;
(iii) Contracts pursuant to which the Acquired Companies is a lessor or a lessee of any property, personal or real, or holds or operates any tangible personal property owned by another Person, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed $100,000;
(iv) Contracts with any supplier of goods or services that provide for, have resulted in, or that are expected to result in expenditures in connection with the Business of more than $1,000,000 in the aggregate during the twelve (12) month period ended December 31, 2018 or any subsequent calendar year (each such supplier, a “Top Supplier”);
(v) Contracts with any customer or distributor (including manufacturer representatives) that provide for, have resulted in or that are expected to result in sales in connection with the Business of more than $1,000,000 in the aggregate during the twelve (12) month period ended December 31, 2018 or any subsequent calendar year (each such customer or distributor, a “Top Customer”);
(vi) Contracts, including severance, change in control, bonus, retention or similar agreements, with any officer, director, consultant or employee (A) of the Acquired Companies or (B) of Sellers or an Affiliate of either Seller to the extent such Contract is Related to the Business, pursuant to which the target annual compensation or potential payment amount with respect to the individual is $100,000 or more;
(vii) any collective bargaining agreement or Contract other contracts with any labor union, trade organization, works council labor organization or similar Person that is Related to the Business;
(viii) any Contract that contains a non-competition or non-solicitation obligation or any other employee representative body, Contract with a third-party professional employer organizationthat limits, or purports to limit, the ability of the Business or of either Acquired Company to compete (A) in any line of business, (B) with any Person or (C) in any geographic area;
(ix) any Contract that (A) restrict the right of the Acquired Companies to sell or purchase from any person; (B) grants the other party or any Person “most favored nation” status or similar exclusive discount rights; (C) requires any Acquired Company to purchase its total requirements of any product or service from a third party; or (D) provides for “single source” supply to the Acquired Companies;
(x) any Contract granting a right of first refusal, first negotiation or similar preferential right to any third party over any assets of the Acquired Companies;
(xi) any Contract that is a joint venture, strategic alliance, partnership, shareholder or similar Contract;
(xii) any Contract with any other third party which cannot be terminated with thirty Governmental Authority that resulted (30or will result) days’ notice in payments to or lessfrom the Acquired Companies during the twelve (12) month period ended December 31, under which the Company 2018 or any of its Subsidiaries obtains the services of temporary or leased employeessubsequent calendar year;
(iiixiii) any Contract relating to the acquisition or disposition of any product linebusiness, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditoperations or, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and , assets (Cwhether by merger, sale of stock, sale of assets, consolidation or otherwise) Indebtedness or guarantees entered into within the past two (2) years for Indebtedness, the principal amount aggregate consideration under such Contract in excess of which does not exceed $50,000100,000;
(xxiv) any Contract providing for any guaranty by capital expenditures or the Company acquisition or any construction of its Subsidiaries fixed assets involving future payments in excess of third-party obligations $100,000 in the aggregate; and
(1) Contracts under which the Company or any of its Subsidiaries third party has continuing obligations as of the date of this Agreement), been granted a license to use any Business Proprietary Rights (other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made licenses granted pursuant to customer Contracts in the ordinary course of business business) and that are merely incidental (2) Contracts under which any third party has granted to the transaction contemplated in any ContractAcquired Companies or, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business extent applicable to its ownership of the Company or Transferred Proprietary Rights, any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and Seller a license to use any Affiliate of the Company Proprietary Rights (other than a Subsidiary licenses of commercially available software for an annual fee of less than $250,000) (collectively, the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv“IP Licenses”).
(b) The No Seller or Acquired Company has (with or without notice or lapse of time, or both) is in breach or default under any Contract required to be set forth in Section 3.10 of the Disclosure Schedules (each, a “Material Contract” and together, the “Material Contracts”) and, to the Knowledge of Sellers, no other party (with or without notice or lapse of time, or both) to any such Material Contract is in breach or default thereunder. Each Material Contract is (i) a valid, binding obligation of the respective Acquired Company or, to the extent applicable, Seller Parent or any Affiliate of Seller, and Enforceable against the respective Acquired Company or, to the extent applicable, Seller Parent or any Affiliate of Seller, and (ii) in full force and effect. Sellers have made available to Parent Purchaser a true and correct copy complete copy, including any amendments, of all written Company outstanding Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth Contracts as in effect on the terms and conditions of each oral Company Material Contractdate hereof.
(c) The Top Customers and Top Suppliers are set forth on Sections 3.10(a)(v) and 3.10(a)(iv), respectively, of the Disclosure Schedule. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a3.10(c) of the Company Disclosure Letter if such Contract was in effect as Schedule, since December 31, 2018, none of the date of this AgreementTop Customers or Top Suppliers has (i) terminated or cancelled its business with the Acquired Companies, a “Company Material Contract” andas applicable, collectively, the “Company Material Contracts”) and or (ii) to the Company’s knowledgeKnowledge of Sellers, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries indicated an intention to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto1) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel its business with the Acquired Companies, as applicable, or (2) reduce the volume, reduce its business, increase its pricing or alter other terms of its business with the Acquired Companies, in each case in this clause (ii)(2) in any Company Material Contract manner materially adverse to the Acquired Companies, as applicable.
(whether d) The Acquired Companies have made capital expenditures for fiscal year ending December 31, 2019 as a result set forth on Schedule 3.10(d) of the transactions contemplated hereby or otherwise)Disclosure Schedules.
Appears in 1 contract
Contracts and Commitments. (a) As Except as set forth in Section 3.5(a) of the date of this AgreementDisclosure Schedule, none of the neither Company or nor any of its Subsidiaries Subsidiary is a party to or bound by any:
by: (i) “material contract” (as such term is defined any agreement, contract or commitment requiring the expenditure or series of related expenditures of funds in Item 601(b)(10) excess of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property 25,000 (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted purchase orders in the ordinary course of business to service providersfor materials necessary for the Companies and the Subsidiaries); (ii) any agreement, contract manufacturing organizations or customers commitment requiring the payment for goods or services whether or not such goods or services are actually provided or the provision of goods or services at a price less than cost to the Companies and the Subsidiaries of producing such goods or providing such services; (iii) any loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of any such loan, advance or investment; (iv) any agreement or obligation with any Shareholder or any Affiliate of either Company or any Subsidiary; (v) any Debt Obligations; (vi) any labor union, management service, employment, consulting or other similar type contract or agreement; (vii) any agreement, contract or commitment that would limit the freedom of its Subsidiaries;
Weat▇▇▇▇▇▇▇ ▇▇ any Affiliate thereof following the Closing Date to engage in any line of business, to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of the assets of the Companies and the Subsidiaries or to compete with any Person or to engage in any business or activity in any geographic area; (viii) Contract pursuant to which the Company any agreement, lease, contract or any commitment or series of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit related agreements, security agreements leases, contracts or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does commitments not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made entered into in the ordinary course of business or, except for agreements to purchase or sell goods and that are merely incidental to services entered into in the transaction contemplated in any Contract, the commercial purpose ordinary course of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company Companies and the Subsidiaries, not cancelable by the Companies and the Subsidiaries, without penalty to the Companies and the Subsidiaries, within 30 calendar days; (ix) any agreement or contract obligating the Companies and the Subsidiaries or that would obligate or require any subsequent owner of its the Companies and the Subsidiaries to provide for indemnification or contribution with respect to any matter; (x) any sales, distributorship, agency or similar agreement relating to the products sold or services provided by the Companies and the Subsidiaries;
; (xi) Contract between the Companyany license, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
royalty or similar agreement; or (xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures any other agreement, contract or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, commitment that might reasonably be expected to be material to the Companies and the Subsidiaries or their business.
(b) Neither Company and its Subsidiaries, taken as a whole, (i) the Company nor any Subsidiary is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listedprovision of, or required to be listedin default (and the Shareholders have no knowledge of any event or circumstance that with notice, or lapse of time or both, would constitute an event of default) under, the terms of any of the contracts or agreements listed in Section 3.12(a3.5(a) of the Company Disclosure Letter (each, together with any Contract entered into after Schedule. All of the date of this Agreement but would be required to be contracts and agreements set forth on in Section 3.12(a3.5(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and Schedule are in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (effect. The Shareholders are not aware of any pending or threatened disputes with respect to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As any of the date contracts or agreements set forth in Section 3.5(a) of the Disclosure Schedule.
(c) The enforceability of the contracts and agreements set forth in Section 3.5(a) of the Disclosure Schedule will not be affected in any material respect by the execution and delivery of this Agreement, no party to any Company Material Contract has given any written notice, Agreement or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result consummation of the transactions contemplated hereby hereby.
(d) Except for the Nels▇▇ ▇▇▇e and intercompany indebtedness, neither Company nor any Subsidiary is indebted to any Shareholder or otherwise)any Affiliate of any Shareholder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Weatherford International Inc /New/)
Contracts and Commitments. (a) As of the date of this Agreement, none of the Company or any of its Subsidiaries is not a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10as an exhibit pursuant to Item 601(b)(10) of Regulation S-K for under the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementSecurities Act;
(ii) Contract (A) relating to the disposition or acquisition by the Company of any assets (whether individually or in the aggregate) or that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations) that are expected to result in claims in excess of $150,000 or (B) pursuant to which the Company will acquire any material ownership interest in any other person or other business enterprise;
(iii) collective bargaining agreement or Contract with any labor union, trade labor organization, works council trade organization or other employee representative body, Contract with body (other than any statutorily mandated agreement in a thirdnon-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdiction);
(iv) Contract establishing any joint venturesventure, partnershipspartnership, profit shareslimited liability company or collaboration, material collaborations pursuant to which the Company has an obligation (contingent or similar arrangementsotherwise) to make a investment in or extension of credit to any Person, in each case, that contemplates payments in excess of $250,000;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates, including following the Acceptance Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts to which Parent or any of its Affiliates is a party prior to the Acceptance Time) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or its Affiliates, including following the Acceptance Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts to which Parent or any of its Subsidiaries has granted Affiliates is a party prior to the Acceptance Time) to conduct any business on a “most favored nations” basis with any third party, (D) under which any Person or group of Persons has been granted the right to manufacture, develop, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis to any Person or group of Persons or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of obligating the Company or its Affiliates to purchase or otherwise obtain any of its Subsidiariesproduct or service exclusively from any third party or sell any product or service exclusively to any third party;
(vi) Contracts in respect of Indebtedness for borrowed money of $50,000 or more (A) Third Party Component Contract whether incurred, assumed, guaranteed or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of secured by any Product of the Company or any of its Subsidiaries, and, in the case of this clause (Basset), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Softwarea Company Plan) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xiiviii) Company Real Property leaseContract relating to the voting or registration of any securities;
(xiiiix) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets in favor of a party other than the Company;
(x) Contract under which the Company and the Company’s Subsidiaries made is expected to make annual expenditures or received receive annual revenues in excess of $500,000 during the 2024 current or a subsequent fiscal year;
(xi) Contract that obligates the Company to make any capital commitment, loan or similar expenditure in an amount in excess of $250,000;
(xii) corporate integrity agreements, consent decrees, deferred prosecution agreements or other similar types of agreements with Governmental Bodies that have existing or contingent performance obligations;
(xiii) Contracts of the Company relating to the settlement of any Action;
(xiv) Contract between Contracts of the Company (other than Company Plans) that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or any otherwise prohibit, limit or restrict the pledging of capital stock of the Company or prohibit, limit or restrict the issuance of guarantees by the Company’s Subsidiaries;
(xv) Contracts with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Products that involve amounts invoiced in excess of $250,000 during the current or a subsequent fiscal year;
(xvi) Contract that by its terms calls for or otherwise may require royalties, on milestone payments or similar contingent payments;
(xvii) Contract that contemplates payments in excess of $250,000 in any calendar year (A) that relates to the one handresearch, and any Governmental Bodytesting, on the other handclinical trial, other than any such Contracts the primary purpose of which is the sale development, commercialization, manufacture, marketing, importation, exportation, sale, distribution, supply or license of any Products Product, including Contracts with contract research organizations, or Services (B) under which clinical, pre-clinical or non-clinical data relating to such Governmental Bodyany Product is or may be generated; or
(xvxviii) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv).
(bxvii) The above of this Section 4.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company has made available to Parent a true and correct copy of all written Company Material ContractsSEC Documents, together with any and each Company Lease listed or required to be listed in Section 4.11(b) of the Company Disclosure Letter, but excluding, in all amendments thereof and waivers thereundercases, and each Company Plan, is referred to herein as a correct and complete written summary setting forth the terms and conditions of each oral “Company Material Contract.”
(ci) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its SubsidiariesCompany, taken as a whole, (i) the Company (A) is not, and has not (and received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has not waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, material amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and its Subsidiaries (to the extent party thereto) Company, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreement, none hereof and except as set forth in Section 3.13 of the Company or any of Disclosure Letter, neither the Company nor its Subsidiaries Subsidiary is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiary that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition by the Company or its Subsidiary of a material amount of assets or equity interests in any Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $250,000 or (B) pursuant to which the Company or its Subsidiary will acquire or dispose of any material ownership interest in any other person or other business enterprise other than the Company’s Subsidiary;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) any Contract (A) prohibiting or materially limiting the freedom or right of the Company or its Subsidiary, in any of its Subsidiaries material respect, to compete engage in any line of business business, to make use of any material Intellectual Property that is owned or purported to be owned by the Company or its Subsidiary or to conduct business compete with any other Person or in any geographical arealocation or line of business, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, Subsidiary or (EC) grants any rights of first refusal, containing exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or its Subsidiary to sell, distribute or manufacture any of its Subsidiariesproducts or services or any technology or other assets to or for any other Person;
(vi) (A) Third Party Component Contract in respect of Indebtedness of $250,000 or (B) other Contract relating to the researchmore, testing, development, commercialization, manufacture individually or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditaggregate, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-owned Subsidiariesits Subsidiary, in each case in the case ordinary course of each business consistent with past practice;
(vii) Contract that requires by its terms or is reasonably likely to require the payment or delivery of clauses cash or other consideration by or to the Company or its Subsidiary in an amount having an expected value in excess of $250,000 in the fiscal year ending December 31, 2022 or in any fiscal year thereafter and cannot be cancelled by the Company or its Subsidiary, as applicable, without penalty or further payment without more than ninety (A90) and days’ notice (Bother than payments for services rendered to the date), excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements entered into in the ordinary course of business; , material transfer agreements, services agreements, clinical trial agreements and non-exclusive outbound licenses entered into in the ordinary course of business;
(Cviii) Indebtedness Contract under which the Company or guarantees for Indebtedness, the principal amount Company’s Subsidiary is expected to make annual expenditures or receive annual revenues in excess of which does not exceed $50,000500,000 during the current or subsequent fiscal year;
(ix) IP Contract;
(x) Settlement agreement, or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Bodies or Company Regulatory Agencies that has existing or contingent performance obligations;
(xi) Contract of the Company or its Subsidiary relating to the settlement of any litigation proceeding that provides for any material existing or contingent obligations on the part of the Company or its Subsidiary;
(xii) Contract of the Company or its Subsidiary that prohibits, limits or restricts the payment of dividends or distributions in respect of the capital stock of the Company or its Subsidiary or otherwise prohibits, limits or restricts the pledging of capital stock of the Company or its Subsidiary or prohibits, limits or restricts the issuance of guarantees by the Company or its Subsidiary;
(xiii) Contract providing for any guaranty by the Company or any of its Subsidiaries Subsidiary of third-party obligations obligations;
(under which xiv) Contract providing for the Company issuance or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company sale of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business equity securities of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xv) of this Section 3.13 or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, is referred to herein as a “Company Material Contract.”
(b) The Company Parent has made available been given access to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to be material to the a Company and its Subsidiaries, taken as a whole, Material Adverse Effect: (i) none of the Company is not or its Subsidiary is, or has received written notice that any other party to any Company Material Contract (and to the Company’s knowledge is not alleged to beA) is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any material rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject (ii) there has occurred no event giving to each others any right of the Company Material Contracts is not in breach thereof termination, amendment or in default thereunder. Each cancellation of (with or without notice or lapse of time or both) any such Company Material Contract and (iii) each such Company Material Contract, unless expired pursuant to its terms, is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiary, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date Agreement Date, to the Knowledge of this Agreementthe Company, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Sources: Merger Agreement (Renovacor, Inc.)
Contracts and Commitments. (a) As Schedule 3.14 sets forth a true, complete and correct list (including all amendments, modifications or supplements with respect thereto) of the date of this Agreement, none of following agreements (written or oral) to which the Company or any of its Subsidiaries Subsidiary is a party to the extent any such agreement (i) is currently in effect or bound by any:(ii) has been terminated on or prior to the date hereof but contains provisions that survived such termination and such provisions are currently in effect (other than provisions that customarily survive such termination and do not relate to the principal business purpose of such agreement and which do not create any material or ongoing financial or other liability to the Buyer):
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect any loan agreement, note, mortgage, indenture, security agreement and other agreement and instrument relating to the Company or any borrowing of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementmoney;
(ii) collective bargaining any agreement (or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30group of related agreements) days’ notice or less, under which between the Company or any of its Subsidiaries obtains the services of temporary or leased employeesSubsidiary and any Top Customer;
(iii) Contract relating to any agreement concerning the acquisition establishment or disposition operation of any product linea partnership, business joint venture or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreementlimited liability company;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations agreement (or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right group of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (Crelated agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) an Encumbrance (other than Permitted Liens) on any of its Subsidiaries has granted to any Person the assets, tangible or group of Persons the right to manufactureintangible, sell, market or distribute any Product of the Company or any Subsidiary;
(v) any agreement for the disposition of its Subsidiariesa material portion of the assets of the Company or any Subsidiary (other than sales in the ordinary course of business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases in the ordinary course of business);
(vi) any agreement concerning non-competition, in each caseexclusivity, on an exclusive basis in non-solicitation, non-recruitment or other such covenants that restricts any geographical area, (D) containing conduct of any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted business by the Company or any of its SubsidiariesSubsidiary, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership in each case with respect to any material assets geographical area of operations or scope or type of business of the Company or any of its Subsidiaries;
(vi) Subsidiary, other than (A) Third Party Component Contract non-competition agreements entered into between the Company or any Subsidiary and its employees or consultants and which do not restrict the Company or any Subsidiary with respect to non-competition or (B) customer contracts and non-disclosure agreements with standard non-solicitation of employee provisions;
(vii) any employment or consulting agreement (other Contract relating to the researchthan offer letters for at-will employment for employees that do not provide for any severance benefit upon such employee’s termination);
(viii) any collective bargaining or similar agreement;
(ix) any agreement involving any current officer, testingemployee, development, commercialization, manufacture director or supply of any Product shareholder of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to Subsidiary or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed consulting agreement with an individual involving payments by the Company or any Subsidiary in excess of its Subsidiaries to another Person ($50,000 per annum other than an Affiliate)agreements entered into in connection with the issuance and exercise of options;
(x) any barter agreement;
(xi) any derivative contract and other hedging arrangement;
(xii) any operating lease (as defined by GAAP) requiring payments of greater than $10,000 in any year;
(xiii) any agreement or arrangement for the provision of bandwidth, except non-exclusive licenses that are granted relating to operating systems or with respect to the acquisition or leasing of hardware, including agreements with Level 3 Communications Inc. and Dell, Inc.; and
(xiv) any other material agreement, including a guarantee, not entered into in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which that requires the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable payment by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)10,000.
(b) The Company has made available to Parent a true All contracts, agreements and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or instruments required to be listed, listed in Section 3.12(a) of the Company Disclosure Letter Schedule 3.14 (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) are valid and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and are in full force and effect and is validconstitute legal, valid and binding and enforceable against obligations of the Company and its the Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the CompanyStockholders, of the other parties thereto, and are enforceable in accordance with their respective terms subject, in each case, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally. The Company has not received any written notice (whether or not written) of regarding termination or cancellation of any Material Contracts. Neither the Company Material Contract or that it intends nor any Subsidiary is in default and to seek to terminate or cancel any Company Material Contract (whether as a result the knowledge of the transactions contemplated hereby Stockholders, no other party is in material default in complying with any provisions of any Material Contract, and to the knowledge of the Stockholders, no condition or otherwise)event or fact exists which, with notice, lapse of time or both, could constitute a material default thereunder on the part of the Company or any Subsidiary. The Stockholders have delivered or made available to the Buyer a true, correct and complete copy of each of the Material Contracts.
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreement, none other than as set forth in Section 3.13(a) of the Company or Disclosure Letter, neither the Company, any of its Subsidiaries nor any of their respective assets or properties is a party to or bound by any:
(i) “material contract” Contract (as such term is defined in Item 601(b)(10A) of Regulation S-K of relating to the SEC) with respect to disposition or acquisition by the Company or any of its Subsidiaries that was required of any assets (other than acquisitions or dispositions of assets in the ordinary course of business), business (whether by merger, sale of stock, sale of assets or otherwise) or real property prior to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementAgreement with any outstanding material obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations or payments) or a purchase price or sale price, in each case in excess of $2,000,000 or (B) pursuant to which the Company or any of its Subsidiaries will acquire any ownership interest in any other person or other business enterprise other than the Company’s Subsidiaries;
(ii) employment, individual consulting, severance, retention or similar contract with any officer, director, Employee or Independent Contractor that provides for annual base compensation of at least $300,000, other than Contracts terminable by the Company for any reason upon less than ninety (90) days’ notice without incurring any liability;
(iii) collective bargaining agreement or other Contract with any labor union, labor or trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract containing provisions (A) prohibiting prohibiting, restricting or materially limiting the right of the Company or any of its Subsidiaries to compete or to engage in any line or type of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party party, to conduct any business on a “most favored nations” basis with any third Person or to sell any product or service exclusively to a single partyparty or conduct any business on an exclusive basis with any third Person, or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(v) Contract in respect of any Indebtedness in excess of $2,000,000, other than (A) accounts receivables and payables in the ordinary course of business, (B) loans to direct or indirect wholly owned Subsidiaries or other loans between or among the Company and its direct or indirect wholly owned Subsidiaries or between or among the Company’s Subsidiaries and (C) cash-pooling arrangements entered into between or among the Company and its Subsidiaries;
(vi) Contract containing a right of first refusal, right of first negotiation, right of first offer, put, call, redemption, repurchase or similar right with respect to any Equity Interests, properties or assets that have a fair market value or purchase price of more than $2,000,000 in favor of a party other than the Company or its Subsidiaries;
(vii) [Reserved];
(viii) Contract under which the Company or any of its Subsidiaries makes annual expenditures or receive annual revenues in excess of $3,000,000 during the current fiscal year;
(ix) Contract with third-party manufacturers or suppliers for the manufacture or supply of materials or products in the supply chain for Products that involve payments in excess of $3,000,000 during the current fiscal year or the fiscal year ended December 31, 2022;
(x) Contract that relates to the formation, creation, operation, governance, management or control of any partnership or joint venture with any third party that is material to the business of the Company and its Subsidiaries, taken as a whole;
(xi) [Reserved];
(xii) settlement or similar agreement pursuant to which (A) the Company or any Subsidiary of the Company will be required to pay after the date of this Agreement any monetary amount in excess of $300,000 or (B) that contains non-monetary obligations or limitations on the conduct of the Company or any Subsidiary of the Company (other than ordinary course confidentiality obligations);
(xiii) any indemnification between the Company or any of its Subsidiaries, on the one hand, and any officer, director or employee of the Company or any of its Subsidiaries, in each caseon the other hand;
(xiv) Lease; or
(xv) Contract with any of the top ten (10) vendors of the Company, calculated based on an exclusive basis in any geographical area, (D) containing any “most favored nations” amounts spent by or similar preferential terms and conditions (including with respect to pricing) granted by on behalf of the Company or during each of (i) the current fiscal year and (ii) the fiscal year ended December 31, 2022 (“Company Top Vendors”). Each Contract set forth in sub-clauses Section 3.13(a)(i) through Section 3.13(a)(xv) of this Section 3.13(a) and any IP Contract is referred to herein as a “Company Material Contract.”
(b) Except as set forth in Section 3.13(b) of the Company Disclosure Letter, true, correct and complete copies of all written Company Material Contracts have been made available to Parent.
(c) Except for such breaches and defaults as would not have a Company Material Adverse Effect (i) neither the Company nor any of its SubsidiariesSubsidiaries nor, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business the Knowledge of the Company Company, any other party, is in violation or any breach of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to default under the research, testing, development, commercialization, manufacture or supply terms of any Product Company Material Contract, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default thereunder and (ii) each Company Material Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, the Company or any of its Subsidiaries, and, in to the case Knowledge of this clause (B)the Company, providing for minimum payment obligations payable each other party thereto, except to or by the extent such enforceability is subject to the Enforceability Exceptions. There are no disputes pending or, to the Company’s Knowledge, threatened with respect to any of the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which Material Contracts and the Company or its applicable Subsidiary party thereto has not received any written notice of its Subsidiaries the intention of any other party to any Company Material Contract to (Ax) licenses materially amend or modify the terms or conditions of any Intellectual Property Company Material Contract or (other than commercially available off-the-shelf Softwarey) from another Personto terminate any Company Material Contract, which Intellectual Property nor to the Company’s Knowledge is used by any such party threatening to do so, in each case except as would not have a Company Material Adverse Effect. Since December 31, 2022, neither the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or nor any of its Subsidiaries has received written notice alleging a breach of or default under any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(cd) Except as would not, individually or in the aggregate, reasonably be expected to be material to the The Company and its Subsidiaries, taken as a whole, has not received any written notice from any Company Top Vendor (i) the Company is communicating its intention to materially amend, modify, terminate, not (and to renew or reduce its business relationship with the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledgeeffect that it will fail to perform, as of the date of this Agreementor is reasonably likely to fail to perform, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (material obligations to the extent party thereto) andCompany. There are no pending or, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge Knowledge of the Company, any notice (whether or not written) of termination or cancellation of threatened material disputes with any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Top Vendor.
Appears in 1 contract
Contracts and Commitments. Except as set forth on Schedule 4.12, neither the Company nor any Subsidiary of the Company is a party to:
(a) As any partnership agreement or joint venture agreement which requires a payment, or delivery of assets or services, in excess of $250,000 per year;
(b) any agreement requiring the date payment of this Agreementseverance or termination or similar pay with any director, none officer, employee or consultant;
(c) any agreement with another Person limiting in any respect or restricting in any respect the ability of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K Subsidiary of the SECCompany to enter into or engage in any market or line of business, including competing (geographically or otherwise) with respect any Person, granting any exclusive rights to the Company make, sell or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset distribute products of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing granting any “most favored nations” rights;
(d) any agreement with any current or similar preferential terms and conditions (including with respect to pricing) granted by the Company former officer, director, shareholder or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business Affiliate of the Company or any of its Subsidiaries;
(vie) (A) Third Party Component Contract or (B) other Contract relating to any agreements for the research, testing, development, commercialization, manufacture or supply sale of any Product of the assets of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business or for the grant to service providers, contract manufacturing organizations or customers any Person of Company or any preferential rights to purchase any of its Subsidiariesassets entered into since January 1, 2008;
(viiif) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts agreement relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty acquisition by the Company or any of its Subsidiaries of third-party obligations any operating business or the assets or capital stock of any other Person entered into since January 1, 2008;
(g) any agreements relating to the incurrence, assumption, surety or guarantee of any Indebtedness;
(h) any agreements under which the Company or any of its Subsidiaries has continuing obligations as made material advances or loans to any other Person (which shall not include advances made to an employee of the date of this Agreement), other than (A) any guaranty by the Company of or any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made Subsidiaries in the ordinary course of business and that are merely incidental to business);
(i) any agreements for the transaction contemplated in any Contractpurchase or sale of materials, supplies, goods, services, equipment or other assets, the commercial purpose performance of which is primarily extend over a period of more than one year or are outside the ordinary course of business;
(j) any agreements for something other than such indemnification obligationscapital expenditures in excess of $100,000;
(k) any agreements that license any Person to manufacture or reproduce any products, and which indemnification obligations are not services or technology of the Company or any of its Subsidiaries or any material agreements to the business sell or distribute any products, services or technology of the Company or any of its Subsidiaries;
(xil) Contract between the Companyany settlement agreements with respect to any pending or threatened Proceeding entered into since January 1, on the one hand2008, and any Affiliate of the Company (other than a Subsidiary (i) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of its Subsidiaries in the Companyordinary course of business in connection with routine cessation of such employee’s Subsidiariesor independent contractor’s employment with or retention by the Company or any of its Subsidiaries or (ii) settlement agreements for cash only (which have been paid), on none of which required payment in excess of $100,000;
(m) any other agreement (or group of related agreements) the one hand, and performance of which requires aggregate payments to or from the Company or any Governmental Body, on the other handof its Subsidiaries in excess of $250,000 per year, other than any such Contracts agreements entered into in the primary purpose ordinary course of which is the sale of any Products or Services to such Governmental Bodybusiness; or
(xvn) Contract any other agreement (or group of related agreements) that is otherwise material to enter into any Contract the business, properties, assets or Liabilities of the type described in Company or any of its Subsidiaries or under which the foregoing clauses (i) through (xiv).
(b) consequences of a default or termination could reasonably be expected to have a Company Material Adverse Effect. The Company has made available to Parent a true and correct copy Merger Sub accurate and complete copies of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be contracts set forth on Section 3.12(a) Schedule 4.12. Each of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts contracts set forth on Schedule 4.12 is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is validthe legal, valid and binding and obligation of the Company and/or its Subsidiaries, enforceable against them in accordance with its terms, except as such enforceability may be limited by General Enforceability Exceptions. With respect to each of the contracts set forth on Schedule 4.12, neither the Company and nor any of its Subsidiaries (to the extent party thereto) andis in material default of any such contract, nor, to the Company’s knowledgeKnowledge, each other party thereto. As has any event occurred which, with notice or the lapse of the date of this Agreement, no party to any Company Material Contract has given any written noticetime, or both, would give rise to a default by the knowledge of the CompanyCompany or such Company Subsidiary, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)applicable.
Appears in 1 contract
Sources: Merger Agreement (Helen of Troy LTD)
Contracts and Commitments. (a) As of the date of this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement Contract (A) relating to the disposition or Contract with acquisition by the Company or any labor unionof its Subsidiaries of a material amount of assets (1) after the date of this Agreement, trade organizationother than the sale of inventory in the ordinary course of business, works council or (2) prior to the date of this Agreement, that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other employee representative body, Contract with a third-party professional employer organization, contingent obligations) that are still in effect that are expected to result in claims in excess of $500,000 or other Contract with any other third party which cannot be terminated with thirty (30B) days’ notice or less, under pursuant to which the Company or any of its Subsidiaries obtains will acquire any material ownership interest in any other person or other business enterprise other than the services of temporary or leased employeesCompany’s Subsidiaries;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nation” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(viiv) (A) Third Party Component Contract Contracts in respect of Indebtedness of $1,500,000 or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditmore, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-wholly owned Subsidiariessubsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(xv) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (Aa Company Plan) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xiivi) Company Real Property leaseContract relating to the voting or registration of any securities;
(xiiivii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets in favor of a party other than the Company or its Subsidiaries;
(viii) Contract under which the Company and the Company’s or any of its Subsidiaries made is expected to make annual expenditures or received receive annual revenues in excess of $1,000,000 during the current or a subsequent fiscal year;
(ix) Contracts of the Company or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(x) Contracts of the Company or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit or restrict the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xi) collective bargaining, works council or other similar labor agreement or Contract with a labor union;
(A) any Contract for the employment or engagement of any individual on a full-time, part-time, consulting or other basis that provides for annual base compensation of $300,000 or more (other than any “at-will” agreements that may be terminated by the Company or any of its Subsidiaries without liability or advance notice), or (B) any Contract with a current or former Service Provider that provides for transaction, change in control, retention or severance payments or benefits or other similar payments or benefits;
(xiii) Contracts with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Products that involve payments in excess of $500,000 during the 2024 current or a subsequent fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; orIP Contracts;
(xv) Contract Contracts relating to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contractsjoint venture, together with any and all amendments thereof and waivers thereunderstrategic alliance, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually partnership or in the aggregate, reasonably be expected to be similar agreement that is material to the operations of the Company and its Subsidiaries, taken as a whole;
(xvi) Contracts between or among the Company, on the one hand, and any directors, executive officers (as such term is defined in the Exchange Act) or any beneficial owner of five percent (5%) or more of any class of Shares (other than the Company) or any Affiliate of the foregoing (or, to the Knowledge of the Company, any immediate family member of any of the foregoing), on the other hand; or
(xvii) Contract to enter into any of the foregoing. Each such Contract described in clauses (i) through (xvi) above of this Section 3.14(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listedSEC Documents, or required to be listed, together with each Company Real Property lease listed in Section 3.12(a3.12(b) of the Company Disclosure Letter (eachLetter, together with any Contract entered into after the date of this Agreement but would be required is referred to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect herein as of the date of this Agreement, a “Company Material Contract” and, collectively, the “.”
(i) Except as would not have a Company Material Contracts”) and (ii) to the Company’s knowledgeAdverse Effect, as of the date of this Agreement, the parties other than neither the Company nor any of its Subsidiaries (A) is, or has received written notice that any other party to any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Company Material Contract to which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As Section 3.12(a) of the Company Disclosure Letter identifies each Contract that constitutes a Company Material Contract as of the date of this Agreement. For purposes of this Agreement, none each of the following shall be deemed a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term is defined in Item 601(b)(10601 (b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, be filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementK;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty U.S. jurisdictions) (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees“Labor Agreements”);
(iii) Contract establishing or relating to the acquisition formation, creation, operation, management or disposition control of any product linejoint venture, business partnership, collaboration or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreementsimilar arrangement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services with a value in excess of $1,000,000, or to sell any material product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the (1) exclusive right to develop, manufacture, sell, market or distribute the Products, or (2) non-exclusive right to develop, manufacture, sell, market or distribute the Products (excluding, solely for subclause (C)(2), any Product Routine Services Contracts entered into in the ordinary course of business), (D) provides for “exclusivity” or any similar requirement in favor of any Person or group of Persons or in any geographical area or (E) requiring the Company or any of its SubsidiariesAffiliates (including, in each casefollowing the Closing, Parent or any of its Affiliates) to conduct any business on an exclusive basis in any geographical area, (D) containing any a “most favored nations” basis with any Person;
(v) Contract containing any “non-solicitation” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of “no-hire” provision that restricts the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract in respect of Indebtedness of $500,000 or (B) other Contract relating to the researchmore, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or loan by the Company of at least $100,000 in to any prospective twelve (12)-month periodother Person;
(vii) Contract (other than a Company Plan) providing for an Affiliate Transaction;
(viii) Contract relating to the voting or registration of any of the Company’s securities;
(ix) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets other than as set forth in the Company Equity Plans, Company ESPP or forms of award agreements thereunder which have been filed with the SEC with the Company’s Annual Report on Form 10-K for the year ended December 31, 2024, or any Company SEC Documents filed after the date of filing of such Form 10-K;
(x) Contract that contains any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another Person;
(A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or Contract and (B) licenses any Intellectual Property owned open purchase order, in each case, for payments that remain or inmay become due of $1,000,000 or more (such Contracts and purchase orders, or work orders, change orders or master services agreements relating to the same, the “Purchase Orders”) other than, in each case, a Company Plan;
(xii) Corporate integrity agreement, consent decree, deferred prosecution agreement, non-licensed by prosecution agreement, or other similar type of agreement with Governmental Bodies that have existing or contingent performance obligations;
(xiii) Contract of the Company or any of its Subsidiaries relating to another Person (the settlement, conciliation or similar agreement with any Governmental Body or other than an Affiliate)Person, except non-exclusive licenses or that are granted in provides for any continuing material obligations on the ordinary course part of business to service providers, contract manufacturing organizations or customers of the Company or any of its Subsidiaries;
(viiixiv) Contract of the Company or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the Company Securities, or otherwise prohibit, limit or restrict the pledging of Company Securities, or prohibit, limit or restrict the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xv) stockholders’, investors rights’, registration rights or similar Contract (excluding Contracts governing Equity Awards);
(xvi) Contract (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company or any of its Subsidiaries leases, subleases, uses or occupies any real property;
(xvii) Contract with or binding upon the Company, any of its Subsidiaries or any of its or their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xviii) IP Contract;
(xix) Contract with any academic institution, research center or Governmental Body (excluding any Routine Services Contracts entered into in the ordinary course of business) that has created, or is anticipated to create, any Owned Intellectual Property or otherwise any material Company Intellectual Property (or the research or development of any of the foregoing or the funding for such research or development activities);
(xx) Contract with respect to commercialization, manufacturing, supply, collaboration, co-promotion, discovery, research, development or profit sharing (including any such Contracts with any third-party payor or any third party contract research organization or third party contract manufacturing organization that develops, manufactures or supplies any Products and/or that directly conducts clinical trials), in each case, with a value in excess of $1,000,000, but excluding any such Contracts that do not contemplate any of (i) the assignment of any material Intellectual Property by the Company to any other Person, (ii) royalties or other revenue or profit sharing arrangements or (iii) the transfer or licensing of material Company Intellectual Property, other than non-exclusive licenses incidental to the performance of services or activities under such Contract;
(xxi) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other guarantee, “earnoutearn-out” or similar contingent payment obligations (other than indemnification or deferred performance guarantee obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or its Subsidiaries, in each case, that could result in payments potentially payable by in excess of $500,000;
(xxii) Contract that obligates the Company or any of its Subsidiaries to make any capital commitment or capital expenditure in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal an amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year500,000;
(xivxxiii) Contract between or offer letter that is for the employment of any directors, officers or employees at annual base salary or base level of cash compensation in excess of $250,000, provided that proprietary information, invention assignment, and restrictive covenant agreements on the Company or any standard form(s) that have been disclosed on Section 3.12(a) of the Company’s Subsidiaries, Company Disclosure Letter need not be individually set forth on Section 3.12(a)(xxiii) of the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; orCompany Disclosure Letter;
(xvxxiv) Contract with any independent contractor or consultant involving annual payments in excess of $250,000; and
(xxv) Contract or arrangement to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)foregoing.
(b) The Company has made available to Parent a A true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material ContractContract has been made available to Parent.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) Neither the Company is not nor any of its Subsidiaries (and A) is, or has received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any material rights or material benefits under any Company Material Contract listedto which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any Company Material Contract (excluding expiration of any Contract in accordance with its terms or as required by the Contemplated Transactions), (iii) the Company and to the Knowledge of the Company, each other party to any such Company Material Contract has performed all material obligations required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if performed by such Contract was in effect party as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) Agreement and (iiiv ) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiaries, as applicable, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, (or to the knowledge Knowledge of the Company, any oral) notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this AgreementExcept for contracts, none commitments, agreements, leases, licenses, and other instruments disclosed in Section 4.25 of the Company or Disclosure Schedule (collectively, the "Material Contracts"), neither Company nor any of its Subsidiaries is a party to or bound by: (a) any agreements with any present employee, officer or director (or former employee, officer or director to the extent there remain at the date hereof obligations to be performed by any:
Company or any of its Subsidiaries), other than individual non-competition and/or confidentiality agreements with employees entered into in the ordinary course of business; (ib) “any material contract” agreements with a consultant, sales representative, agent or dealer not terminable upon 30 days written notice; (as such term is defined c) agreements or indentures relating to the borrowing of money or the deferred purchase price of property (in Item 601(b)(10) either case whether or not secured in any way), or any guarantee of Regulation S-K any of the SECforegoing, having a remaining balance on the date hereof in an amount exceeding $100,000 or in respect of which Company or one of its Subsidiaries is not authorized to prepay the related indebtedness on 30 days or less advance notice; (d) any partnership, joint venture, profit-sharing or similar agreement; (e) contracts, not entered into in the ordinary course of business on an arm's-length basis, that are material to Company; (f) any collective bargaining agreements, memoranda or understanding, settlements or other labor agreements with respect any union or labor organization applicable to Company, its Affiliates or their employees; (g) any agreements or arrangements for the acquisition or sale of any business of Company entered into since January 1, 2001 (or, without regard to such date, to the extent any indemnification or similar obligations of Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date exist as of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining or any such agreement or Contract with any labor unionarrangement, trade organizationregardless of when such agreement or arrangement was entered into, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which canthat has not be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person yet been consummated or in any geographical area, (B) obligating the Company or any respect of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make remaining obligations (whether by merger, sale or purchase of assets or stock, consolidation, share exchange or otherwise); (h) any milestone agreement which imposes non-competition or royalty non-solicitation restrictions, or other “earnout” any "exclusivity" or similar contingent provision or deferred payments potentially payable by the Company covenant, including any organizational conflict of interest prohibition, restriction, representation, warranty or notice provision or any of its Subsidiaries other restriction on future contracting set forth in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditCompany's Government Contracts, other than (A) accounts receivables and payables; (B) loans non-solicitation restrictions relating to direct clients' or indirect wholly-owned Subsidiaries, the Company's employees contained in the case of each of clauses (A) and (B), Company's contracts entered into in the ordinary course of business; (i) any employment, severance or other similar agreement which contains a change of control or "golden parachute" provision; and (Cj) Indebtedness or guarantees for Indebtedness, the principal amount of any other agreements to which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-is a party obligations (under or by which the Company they or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that their assets are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, bound and which indemnification obligations are not material to the business of the Company involves consideration or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues obligation in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)250,000.00 annually.
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As Except for any Company Plans, as of the date of this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement Contract (A) relating to the disposition or Contract with acquisition by the Company or any labor unionof its Subsidiaries of a material amount of assets (1) after the date of this Agreement, trade organizationother than the sale of inventory in the ordinary course of business, works council or (2) prior to the date of this Agreement, that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other employee representative body, Contract with a third-party professional employer organization, contingent obligations) that are still in effect that are expected to result in claims in excess of $2,000,000 or other Contract with any other third party which cannot be terminated with thirty (30B) days’ notice or less, under pursuant to which the Company or any of its Subsidiaries obtains will acquire any material ownership interest in any other person or other business enterprise other than a Subsidiary of the services of temporary or leased employeesCompany;
(iii) Contract relating to the acquisition establishing any joint venture, partnership, limited liability company or disposition of any product line, business or material asset of the Company or any of its Subsidiariescollaboration, in each case, with obligations remaining that is material to be performed or Liabilities continuing after the date of this AgreementCompany and its Subsidiaries, taken as a whole;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, to sell any material product or service exclusively to a single partyparty or making any material commitment, such as a minimum volume requirement or capacity reservation fees, to a contract manufacturing organization, (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(viv) Contracts in respect of Indebtedness of $5,000,000 or more (A) Third Party Component Contract whether incurred, assumed, guaranteed or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of secured by any Product of the Company or any of its Subsidiaries, and, in the case of this clause (Basset), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to or among direct or indirect wholly-wholly owned Subsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xivi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities;
(viii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets that have a fair market value or purchase price of more than $5,000,000 in favor of a party other than the Company or any of its Subsidiaries;
(ix) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $3,000,000 during the fiscal year 2025 or fiscal year 2026;
(x) Contracts of the Company or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xi) Contracts of the Company or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit or restrict the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by the Company or any of its Subsidiaries;
(xii) Company Real Property leaseContracts with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Products that involve payments in excess of $1,000,000 during the current fiscal year;
(xiii) Contract with any Governmental Body under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues payments in excess of $500,000 during 2,000,000 were received by the 2024 Company in the most recently completed fiscal year;
(xiv) Contract between Hedging, swap, derivative or similar Contract;
(xv) Contracts pursuant to which the Company or any of the Company’s Subsidiaries, on the one hand, and its Subsidiaries has monetized any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Bodyfuture revenue stream; or
(xvxvi) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xvi) above of this Section 4.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease listed in Section 4.11(b) of the Company Disclosure Letter and each IP Contract required to be listed in Section 4.14(e) of the Company Disclosure Letter, is referred to herein as a “Company Material Contract.”
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all material amendments thereof and or waivers thereunderthereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would notnot reasonably be expected to, individually or in the aggregate, reasonably be expected to be material to the have a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect, (i) neither the Company is not nor any of its Subsidiaries (and A) is, or has sent or received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination or amendment of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. Except as set forth on SCHEDULE 4.14, the Company is not a party to any written or oral:
(a) As contract for the employment of any officer, individual employee, or other Person on a full-time, part-time, consulting or other basis;
(b) contract relating to Funded Indebtedness or to the mortgaging, pledging or otherwise placing a Lien on any Asset or group of Assets of the date Company;
(c) contract involving the sale of this Agreement, none the accounts receivable of the Company to any other Person at a discount;
(d) guarantee of any obligation for borrowed money or otherwise;
(e) contract with respect to the lending or investing of funds;
(f) contract under which the Company is the lessee of or the holder or operator of any real or personal property owned by any other Person;
(g) contract under which the Company is the lessor of its Subsidiaries is a party or permits any third Person to hold or bound operate any real or personal property owned or controlled by any:the Company;
(h) assignment, license, indemnification or agreement with respect to any form of intangible property, including, without limitation, any Intellectual Property or confidential information;
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person contract or group of Persons related contracts with the right to manufacture, sell, market or distribute any Product same Person for the sale of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business services which generate in excess of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in revenues in any prospective twelve (12)-month 12-month period;
(viij) Contract pursuant to contract which prohibits the Company from freely engaging in business anywhere in the world;
(k) contract relating to the purchase, distribution, marketing or sales of the Company's or any of its Subsidiaries (A) licenses any Intellectual Property other Person's products (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted purchase and sales orders entered into in the ordinary course of business consistent with past practices and the performance of which by the parties thereto is reasonably expected to service providers, contract manufacturing organizations or customers be substantially completed within 30 days of Company or any of its Subsidiariesthe execution thereof);
(viiil) Contract pursuant to which the Company or contract with any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;Affiliate; or
(ixm) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not contract material to the business of the Company. Except as specifically disclosed in SCHEDULE 4.14, the Company has performed in all material respects all obligations required to be performed by it and is not in default under or in breach of nor in receipt of any claim of default or breach under any such contract to which it is a party or by which any of its Subsidiaries;
(xi) Contract between Assets may be bound; and to the Company, on 's Knowledge no event has occurred which with the one hand, and passage of time or the giving of notice or both would result in such a default or breach under any Affiliate of the Company (other than a Subsidiary of such contract. To the Company)'s Knowledge, on the no other hand;
(xii) Company Real Property lease;
(xiii) Contract under party to any contract to which the Company is a party or by which its Assets may be bound is in default under or in breach of such contract and no event has occurred which with the Company’s Subsidiaries made annual expenditures passage of time or received annual revenues giving of notice or both would result in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company a default or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than breach under any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company contract. There has been made available to Parent (i) a true and correct complete copy of all written Company Material Contractseach of the contracts listed on SCHEDULE 4.14, together with any and all amendments thereof and amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) a complete description of all oral contracts to the Company’s knowledge, as of the date of this Agreement, the parties other than which the Company is a party or by which any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)their Assets may be bound.
Appears in 1 contract
Sources: Merger Agreement (Opus360 Corp)
Contracts and Commitments. (a) As of the date of this Agreementhereof, none of the Company or is not, nor is any of its Subsidiaries is Subsidiary, a party to or bound by anyany oral or written contract:
(i) “which is a "material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act) to be performed in full or in part after the date of this Agreement that has not been filed or incorporated by reference in the Company Reports;
(ii) that is a partnership, joint venture, strategic alliance or cooperation agreement (or any agreement similar to any of the SECforegoing), in each case which is material to the Company and its Subsidiaries taken as a whole;
(iii) with respect to that prohibits the Company or any of its Subsidiaries that was required to be, but has not been, filed with from freely engaging or competing in any line of business anywhere in the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementworld;
(iiiv) collective bargaining agreement between the Company and any of its Affiliates (other than Subsidiaries), directors or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which canofficers that is not be terminated with thirty on arms length terms;
(30v) days’ notice or less, under pursuant to which the Company or any of Subsidiary licenses (as licensor or licensee) any cotton or soybean hybrids or any germplasm or any other Intellectual Property related to cotton or soybeans, in each case which is material to the Company and its Subsidiaries obtains taken as a whole, except in each case any of the services of temporary or leased employees;
(iii) Contract relating foregoing which is licensed to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after Subsidiary by the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company Parent or any of its Subsidiaries Affiliates;
(vi) that involves an amount in excess of $1,500,000 and pursuant to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person incurred or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of accrued losses;
(vii) that by its Subsidiaries, terms may be terminated upon a change in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business control of the Company or any of its Subsidiaries;
(viviii) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which that commits the Company or any of its Subsidiaries to purchase or sell any properties or assets outside of the ordinary course of business for consideration in excess of $1,500,000; or
(Aix) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Personthat involves an unfulfilled obligation, which Intellectual Property is used by the Company individually or one of its Subsidiaries in the conduct aggregate, in excess of its $1,500,000 and is incurred outside the ordinary course of business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed and is not terminable by the Company or any of its Subsidiaries to another Person (other upon less than an Affiliate), except non-exclusive licenses that are granted in the ordinary course 120 calendar days' notice for a cost of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant not less than $1,500,000. The foregoing contracts and agreements to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone Subsidiary are parties or royalty or other “earnout” or similar contingent or deferred payments potentially payable by are bound and that are listed in the Company or Disclosure Letter, together with all contracts and agreements filed as exhibits to the Company Reports, are collectively referred to herein as the "Company Material Contracts."
(i) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgagesthat is a party thereto, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligationsapplicable, and which indemnification obligations are not material in full force and effect, except where the failure to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Companybe valid, on the one hand, binding and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company in full force and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as effect would not, individually or in the aggregate, reasonably be expected to be material to have a Material Adverse Effect, (ii) the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any each of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) has and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, all other parties thereto have, performed all obligations required to be performed by such Person under each Company Material Contract, except where such noncompliance would not, individually or in the aggregate, have a Material Adverse Effect, and (iii) neither the Company nor any of its Subsidiaries knows of, or has received written notice (whether of, the existence of any event or not written) condition which constitutes, or, after notice or lapse of termination time or cancellation both, will constitute, a default on the part of the Company, any of its Subsidiaries or any other party thereto under any Company Material Contract Contract, except where such default would not, individually or that it intends to seek to terminate or cancel any Company in the aggregate, have a Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) As of Except as set forth in Section 3.16 or in the date of this Agreement“Contracts Schedule” attached hereto as Schedule 3.10(a) or in the “Customer Contracts Schedule” attached hereto as Schedule 3.10(d), none of the Company or any of its Subsidiaries Seller is not a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) contract with respect to the Company any labor union or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K contract for the fiscal year ended December 31employment of any officer, 2023individual employee or other person on a full-time, part-time or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementconsulting basis;
(ii) collective bargaining mortgaging, pledging or otherwise placing a lien on any of the Purchased Assets;
(iii) license or royalty agreement related to the Business;
(iv) lease or Contract agreement related to the Business under which it is lessee of or holds or operates any personal property owned by any other party;
(v) lease or agreement related to the Business under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it;
(vi) contract or group of related contracts related to the Business with the same party for the purchase or sale of products or services other than the Customer Contracts (as defined in Section 3.10(d) hereof);
(vii) other contract related to the Business with any labor unionparty continuing over a period of more than six months from the date or dates thereof, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with terminable by it on thirty (30) days’ or less notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employeeswithout penalties;
(iiiviii) Contract contract which prohibits it from freely engaging in the Business anywhere in the world;
(ix) contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any distribution of its Subsidiaries, in each case, with obligations remaining products as it relates to be performed or Liabilities continuing after the date of this Agreement;Business; or
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (Bx) other Contract relating agreements related to the research, testing, development, commercialization, manufacture Business whether or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted not entered into in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit but not including insurance agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company Except as specifically disclosed in the Contracts Schedule or the Customer Contracts Schedule, (i) to the Seller’s knowledge, no contract or commitment related to the Business has made available been breached in any respect or canceled by the other party; (ii) since December 31, 2005, no supplier of the Business has notified the Seller that it shall stop or decrease in any material respect the rate of business done with the Seller; (iii) the Seller has in all respects performed all the obligations required to Parent be performed by it to the date of this Agreement and is not in receipt of any claim of default under any material lease, contract, commitment or other agreement related to the Business to which it is a party; (iv) to Seller’s knowledge, no event has occurred which with the passage of time or the giving of notice or both would result in a breach or default under any lease, contract, instrument or other agreement related to the Business to which the Seller is a party and which is related to the Business; and (v) the Seller is not a party to any contract which is adverse to the Business’s operations, financial condition, operating results or business prospects.
(c) Purchaser has been supplied with a true and correct copy of all written Company Material Contractscontracts which are referred to on the Contract Schedule and Customer Contracts Schedule, together with any and all amendments thereof and amendments, waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contractor other changes thereto.
(cd) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, Seller has no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of the Company is not (and Seller’s business relationships with any customer or group of customers, any vendor or supplier related to the Company’s knowledge is not alleged to beBusiness or (ii) changes or pending changes in breach of or default under any Contract listedlaw, rule, regulation, technology, or required business relationship or other circumstance that could result in the loss of any customers related to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into Business after the date hereof. Each contract, agreement or lease with customers of this Agreement but would be required Seller relating to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a Business (“Company Material Contract” and, collectively, the “Company Material Customer Contracts”) and are listed on Schedule 3.10(d) (iithe “Customer Contracts Schedule”). Except as indicated on the Customer Contract Schedule, (A) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Customer Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal valid, enforceable and in full force and effect and in accordance with the terms thereof, (B) there is validno existing default or event or condition which, binding and enforceable against with notice or lapse of time or both, would constitute an event of default under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) no Customer Contract requires the Company and its Subsidiaries (to consent of the extent party thereto) and, to the Company’s knowledge, each Customer or any other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, affect a valid assignment thereof to Purchaser without causing a default or giving rise to the knowledge of the Company, any notice (whether or not written) a right of termination or cancellation of any Company Material thereunder and (E) each Customer Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)complies with all applicable laws, rules and regulations.
Appears in 1 contract
Contracts and Commitments. Except as set forth in Schedule 3.18, the Acquired Companies are not a party to:
(a) As any partnership agreements or joint venture agreements which require a payment, or delivery of assets or services beyond the 2018/2019 ski season and which are not terminable by the applicable Company on 30 days or less written notice without penalty to the applicable Acquired Company, or which contain exclusivity arrangements which will be binding upon the Affiliates of the date of this Agreementapplicable Acquired Company following the Closing;
(b) any agreement pursuant to which the applicable Acquired Company would be required to pay severance to any director, none officer, employee or consultant;
(c) any material agreement with another person or entity limiting or restricting the ability of the applicable Acquired Company to enter into or engage in any market or line of business;
(d) any material brokerage agreements;
(e) any agreements for the sale of any of the assets of the applicable Acquired Company other than in the Ordinary Course of Business or for the grant to any person or entity of any preferential rights to purchase any of its Subsidiaries is a party assets;
(f) any agreement relating to the acquisition by the applicable Company of any operating business or bound by any:the assets or capital stock of any other corporation, entity or business entered into during the last twelve (12) months;
(g) any material agreements relating to the incurrence, assumption, surety or guarantee of any indebtedness;
(h) any material agreements, other than agreements granting rights to use readily available commercial Software and having an acquisition price of less than $50,000 in the aggregate for all such agreements and agreements allowing the use of the Acquired Company trademarks, trade names or other marks or names in connection with promotional activities (i) granting or obtaining any right to use any Intellectual Property or (ii) restricting the rights of the applicable Acquired Company, or permitting other Persons, to use or register any Intellectual Property of the applicable Acquired Company;
(i) “any material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K agreements under which the applicable Acquired Company has made advances or loans to any entity or individual not including advances made to an employee of the SEC) applicable Acquired Company in the Ordinary Course of Business consistent with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementpast practice;
(iij) collective bargaining any agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the both an Acquired Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate (except for another Acquired Company) are jointly and severally liable for breach of the Company such agreement by such Affiliate; or
(other than a Subsidiary of the Companyk) except for agreements described in Schedule 3.18(k), on any other agreement, including group of related agreements, the other hand;
(xii) Company Real Property lease;
(xiii) Contract under performance of which presently requires aggregate payments be made to or from the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues Acquired Companies in excess of $500,000 during the 2024 fiscal 100,000 per year;
(xiv) Contract between the Company or any . Each of the Company’s Subsidiaries, on the one hand, contracts to which any Acquired Company is a party and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, Schedule 3.18 (the “Company Material Contracts”) ), a true and (ii) complete copy of each of which has been delivered or made available to Buyer prior to the Company’s knowledgedate hereof, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is validthe legal, valid and binding and obligation of the applicable Acquired Company, enforceable against the Company and it in accordance with its Subsidiaries (terms, subject to the extent party thereto) andEnforceability Exceptions. With respect to each Material Contract, neither the applicable Acquired Company nor, to the Company’s knowledgeKnowledge of Sellers, each any other party, is in material breach of violation of, or default under, any such Material Contract and no event has occurred, is pending or, to the Knowledge of Sellers, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or default by the applicable Acquired Company or, to the Knowledge of Sellers, any other party thereto. As of the date of this Agreement, no party to any Company under such Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Contract.
Appears in 1 contract
Contracts and Commitments. (a) As of Except as filed as exhibits to the Company SEC Documents filed prior to the date of this Agreement, or as disclosed in Section 3.12 of the Company Disclosure Letter, none of the Company or any of its Subsidiaries Company Subsidiary is a party to or bound by any:
any Contract which (i) “as of the date hereof, is a "material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of promulgated by the SEC) or (ii) except for Leases for Company Leased Real Properties, (A) involves aggregate expenditures in excess of $5 million, (B) involves annual expenditures in excess of $5 million and is not cancelable within one year, (C) which would prohibit or materially delay the consummation of the Merger or (D) contains any non-compete or exclusivity provisions with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including geographic area with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries's current or future Affiliates, on or which restricts the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale conduct of any Products line of business by the Company, any Company Subsidiary or Services to such Governmental Body; or
(xv) Contract to enter into any of the Company's current or future Affiliates or any geographic area in which the Company, any Company Subsidiary or any of the Company's current or future Affiliates may conduct business, in each case in any material respect. Each Contract of the type described in Section 3.12, whether or not set forth in Section 3.12 of the foregoing clauses (i) through (xivCompany Disclosure Letter, is referred to herein as a "Company Material Contract").
(b) The Company has made available to Parent a true and correct copy of all written Each Company Material ContractsContract is valid and binding on the Company or a Company Subsidiary party thereto and, together with any and all amendments thereof and waivers thereunderto the Company's Knowledge, each other party thereto, and a correct is in full force and complete written summary setting forth effect, and the terms Company and conditions each of the Company Subsidiaries have performed in all respects all obligations required to be performed by them to the date hereof under each oral Company Material Contract and, to the Company' Knowledge, each other party to each Company Material Contract has performed in all respects all obligations required to be performed by it under such Company Material Contract.
(c) Except , except, in each case, as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as have a whole, (i) the Company is not (and to Material Adverse Effect on the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this AgreementMSAI does not have any agreement or contract that is material to its business, none of the Company operations or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementprospects;
(iib) collective bargaining agreement No contracts or Contract commitments of MSAI continue for a period of more than six (6) months from the date hereof or require payments, in the aggregate, in excess of $10,000.00;
(c) MSAI does not have any outstanding contract, written or oral, with any labor unionofficer, trade organizationemployee, works council or other employee representative bodyagent, Contract with a third-party professional employer organizationconsultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or other Contract with any other third party which canbroker that is not be terminated with cancelable by MSAI, on notice of not longer than thirty (30) days’ notice days and without liability, penalty or lesspremium of any kind, under except liabilities which the Company arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of its Subsidiaries obtains the services of temporary any bonus or leased employeescommission based on sales or earnings;
(iiid) Contract relating MSAI is not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to MSAI in the acquisition or disposition event they are not sold and which could involve a liability of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementMSAI;
(ive) Contract establishing MSAI has no (i) any joint venturesoutstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of inventory) to any person, partnershipsor (ii) any factoring, profit shares, material collaborations credit line or similar arrangementssubordination agreement;
(vf) Contract Except as noted on SCHEDULE 4.11 (AIndebtedness) prohibiting and -------------- except for negotiable instruments in the process of collection, MSAI does not have any power of attorney outstanding or materially any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(g) Except for the arrangement set forth on SCHEDULE 2.02, there -------------- are no contracts or agreements with any director, officer or shareholder of MSAI, or with any person related to any such person or with any company or other organization in which any director, officer, or shareholder of MSAI, or anyone related to any such person, has a direct or indirect financial interest;
(h) MSAI is not subject to any contract or agreement containing covenants limiting the right freedom of the Company or any of its Subsidiaries MSAI to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company geographic area or requiring MSAI to share any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesprofits;
(vii) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of MSAI or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(Aj) Third Party Component Contract or (B) other Contract relating Except for the arrangement set forth on SCHEDULE 2.02, to the research------------- knowledge of MSAI and the Seller, testingMSAI is not party to or bound by any presently or previously existing contract, development, commercialization, manufacture agreement or supply of any Product of the Company other arrangement that has had or any of its Subsidiaries, and, may in the case future have a material adverse effect upon the business, earnings or financial condition of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from MSAI. MSAI and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has Seller have made available to Parent a true and correct copy of all written Company Material ContractsPurchaser true, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms copies of all contracts, agreements, plans, leases, policies and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listedlicenses referred to, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required referred to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Companylisted on, any notice (whether or not written) Schedule delivered hereunder. SCHEDULE 4.23A sets forth a list of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)contracts and agreements received -------------- by Purchaser.
Appears in 1 contract
Contracts and Commitments. (a) As Except as set forth in Schedule 5.9 hereto, to the Knowledge of Parent, neither the Corporation nor any Subsidiary of the date of this AgreementCorporation has any agreements, none of the Company contracts, arrangements or any of its Subsidiaries is a party to commitments, written or bound by any:
oral, which (i) “material contract” (as such term is defined either individually or in Item 601(b)(10) of Regulation S-K conjunction with other agree- ments, contracts, arrangements or commitments with the same party and in connection with the same matter involve or relate to the payment or receipt by the Corporation or any Subsidiary of the SECCorporation of an aggregate of Ten Thousand and 00/100 Dollars ($10,000.00) with respect to or more over the Company term of the contract or any of its Subsidiaries that was required to be, but has will not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after be totally performed by all parties thereto within ninety (90) days from the date of filing of such Form 10-K until the date of this Agreement;
hereof; (ii) collective bargaining agreement provide for the payment of any bonus or Contract with any labor union, trade organization, works council commission based on sales or other employee representative body, Contract with a third-party professional employer organizationearnings, or other Contract are with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company Parent or any officer, director, consultant, agent or Affiliate of its Subsidiaries obtains Parent or the services Corporation or any Subsidiary of temporary the Corporation, or leased employees;
relate to employment (other than employment arrangements terminable at will, without liability on the part of the Corporation or any Sub- sidiary); (iii) Contract relating relate to non-competition (and the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of Corporation and its Subsidiaries to compete in are not otherwise restricted by any line of business agreement or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively other commitment from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, carrying on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or selling goods of any sort anywhere in the world); or (Biv) licenses any Intellectual Property owned constitute powers of attorney or in-licensed by the Company obligations or any of its Subsidiaries to another Person (other than an Affiliate)liabilities as guarantor, except non-exclusive licenses that are granted surety, or indemnitor in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term respect of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company obligation of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).Person. -18-
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would notset forth in Schedule 5.9 hereto, individually or in the aggregate, reasonably be expected to be material to the Company and its SubsidiariesKnowledge of Parent, taken as a whole, (i) neither the Company Corporation nor any Subsidiary of the Corporation is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectivelythere exists no event or condition which (whether with or without notice, the “Company Material Contracts”lapse of time or both) would constitute a default thereunder, and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company all Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal are valid and in full force and effect and is validwill not cease to be valid and in full force and effect after the Closing. To the Knowledge of Parent, binding accurate and enforceable against the Company complete copies of all Material Contracts, including all amendments thereto, and its Subsidiaries (accurate and complete summaries of all oral Material Contracts have previously been heretofore delivered to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Purchaser.
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this AgreementCTSI does not have any agreement or contract that is material to its business, none of the Company operations or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementprospects;
(iib) collective bargaining agreement No contracts or Contract commitments of CTSI continue for a period of more than six (6) months from the date hereof or require payments, in the aggregate, in excess of $10,000.00;
(c) CTSI does not have any outstanding contract, written or oral, with any labor unionofficer, trade organizationemployee, works council or other employee representative bodyagent, Contract with a third-party professional employer organizationconsultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or other Contract with any other third party which canbroker that is not be terminated with cancelable by CTSI, on notice of not longer than thirty (30) days’ notice days and without liability, penalty or lesspremium of any kind, under except liabilities which the Company arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of its Subsidiaries obtains the services of temporary any bonus or leased employeescommission based on sales or earnings;
(iiid) Contract relating CTSI is not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to CTSI in the acquisition or disposition event they are not sold and which could involve a liability of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementCTSI;
(ive) Contract establishing CTSI has no (i) any joint venturesoutstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of inventory) to any person, partnershipsor (ii) any factoring, profit shares, material collaborations credit line or similar arrangementssubordination agreement;
(vf) Contract Except as noted on SCHEDULE 4.11 (AIndebtedness) prohibiting and except -------------- except for negotiable instruments in the process of collection, CTSI does not have any power of attorney outstanding or materially any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(g) Except for the arrangement set forth on SCHEDULE 4.23(g), ----------------- there are no contracts or agreements with any director, officer or shareholder of CTSI, or with any person related to any such person or with any company or other organization in which any director, officer, or shareholder of CTSI, or anyone related to any such person, has a direct or indirect financial interest;
(h) CTSI is not subject to any contract or agreement containing covenants limiting the right freedom of the Company or any of its Subsidiaries CTSI to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company geographic area or requiring CTSI to share any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesprofits;
(vii) (A) Third Party Component Contract There is no contract, agreement or (B) other Contract relating arrangement entitling any person or other entity to the researchany profits, testingrevenues or cash flows of CTSI or requiring any payments or other distributions based on such profits, development, commercialization, manufacture revenues or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month periodcash flows;
(viij) Contract pursuant Except for the arrangement set forth on SCHEDULE 4.23(g), to which ---------------- the Company knowledge of CTSI and the Seller, CTSI is not party to or bound by any of its Subsidiaries (A) licenses any Intellectual Property (presently or previously existing contract, agreement or other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company arrangement that has had or one of its Subsidiaries may in the conduct future have a material adverse effect upon the business, earnings or financial condition of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from CTSI. CTSI and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has Seller have made available to Parent a true and correct copy of all written Company Material ContractsPurchaser true, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms copies of all contracts, agreements, plans, leases, policies and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listedlicenses referred to, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required referred to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Companylisted on, any notice (whether or not written) Schedule delivered hereunder. SCHEDULE 4.23A sets forth a list of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)contracts and agreements received -------------- by Purchaser.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.18 of the Disclosure Schedule sets forth, as of the date hereof, a true, complete and correct list of every contract, agreement, loan, lease, license, guarantee, understanding or commitment that (i) provides for future payments by the Company or any Company Subsidiary, or to the Company or any Company Subsidiary, of more than $500,000 per annum and has an unexpired term exceeding one year and may not be canceled upon 60 days' notice without any liability, penalty or premium (excluding purchase orders, invoices and leasing transactions entered into or incurred in the ordinary course of business); (ii) was entered into by the Company or a Company Subsidiary with an Affiliate, a stockholder, officer, director or significant employee of the Company, a Company Subsidiary or Seller; (iii) is a collective bargaining or similar agreement; (iv) involves an agreement with any bank, finance company or other organization for Indebtedness of the Company or any Company Subsidiary; (v) restricts the Company or any Company Subsidiary from engaging in any business or activity anywhere in the world, other than restrictions which are immaterial to the conduct of the Business; or (vi) is an employment agreement, consulting agreement, severance or termination agreement or similar arrangement. Section 3.18 of the Disclosure Schedule (which shall be delivered no later than four days from the date hereof) sets forth, as of the date hereof, a true, complete and correct list of all ▇▇▇▇▇, springs and other water sources used by the Company or any Company Subsidiary in its business.
(b) As of the date hereof, (i) there is not and, to the Knowledge of this AgreementSeller, none there has not been claimed or alleged by any Person with respect to any contract listed or which should be listed in Section 3.18 of the Disclosure Schedule any existing default or event that, with notice or lapse of time or both, would constitute a default or event of default on the part of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect Company Subsidiary or, to the Knowledge of Seller, on the part of any other party thereto, except such defaults, events of default and other events that would not result in a Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
Material Adverse Effect and (ii) collective bargaining agreement no consent, approval, authorization or Contract with waiver from, or notice to, any labor union, trade organization, works council Governmental Entity or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or Person is required in order to maintain in full force and effect any of its Subsidiaries obtains the services of temporary contracts listed or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset which should be listed in Section 3.18 of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditDisclosure Schedule, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof consents and waivers thereunder, that have been obtained and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal are unconditional and in full force and effect and is validsuch notices that have been duly given and (B) such consents, binding and enforceable against approvals, authorizations, waivers or notices, the failure of which to have or give would not have a Company Material Adverse Effect. Neither the Company and its Subsidiaries (nor any Company Subsidiary is in default with respect to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As any contract listed or which should be listed in Section 3.18 of the date of this AgreementDisclosure Schedule, no party except as would not reasonably be expected to any result in a Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreement, none Except as set forth on Schedule 3.14(a) of the Company or any of its Subsidiaries Disclosure Schedule, the Company is not a party to or bound by anyany of the following:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation Sany Contract that provides for post-K of the SEC) with respect to the Company employment or any of its Subsidiaries that was required to bepost-consulting liabilities or obligations, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementincluding severance pay;
(ii) collective bargaining agreement any Contract under which payments or Contract with any labor unionobligations will be increased, trade organization, works council accelerated or other employee representative body, Contract with a third-party professional employer organization, vested by the occurrence (whether alone or other Contract in conjunction with any other third party which cannot be terminated with thirty (30event) days’ notice of any of the transactions contemplated by this Agreement, including the Merger, or less, under which the Company value of the payments or obligations will be calculated on the basis of any of its Subsidiaries obtains the services of temporary transactions contemplated by this Agreement, including the Merger, whether pursuant to a change in control or leased employeesotherwise;
(iii) any Contract currently in force relating to the disposition or acquisition or disposition of any product line, business or material asset assets where the fair market value of the Company or any of its Subsidiariessuch assets exceeds $100,000, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), inventory sold in the ordinary course of business; and ;
(Civ) Indebtedness any Contract relating to an ownership interest in any corporation, partnership, joint venture or guarantees other business enterprise or Person;
(v) any Contract for Indebtednessthe purchase of materials, supplies, equipment or services, under which the principal amount aggregate payments made to one party or group of which does not exceed related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $50,000100,000;
(vi) any Contract relating to the guarantee (whether absolute or contingent) by the Company of (A) the performance of any other Person (other than the Company) or (B) the whole or any part of the indebtedness or liabilities of any other Person (other than the Company);
(vii) any Contract relating to the indemnification by the Company of its officers, directors, managers or agents;
(viii) any material Contract of indemnification or guaranty;
(ix) any power of attorney authorizing the incurrence of an obligation on the part of the Company;
(x) any Contract providing which limits or restricts (A) where the Company may conduct business, (B) the type or lines of business (current or future) in which the Company may engage or (C) any acquisition of assets or stock (tangible or intangible) by the Company;
(xi) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $100,000;
(xii) any guaranty Contract for the borrowing or lending of money, or the availability of credit (except credit extended by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made to customers in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Companyconsistent with past practice), on the other hand;
(xii) Company Real Property lease;
(xiii) any Contract under which relating to any hedging, option (other than options granted to service providers in connection with the Company performance of services), derivative or other similar transaction and any foreign exchange position or contract for the Company’s Subsidiaries made annual expenditures or received annual revenues in excess exchange of $500,000 during the 2024 fiscal yearcurrency;
(xiv) any collective bargaining agreements;
(xv) any Contract between relating to the Company or any employment of individuals who serve as officers of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xvxvi) any Contract that would otherwise be required to enter into any be filed as an exhibit to a periodic report under the Exchange Act, as provided by Item 601 of Regulation S-K promulgated under the Exchange Act. Each Contract of the type described in this Section 3.14(a) and in existence as of the foregoing clauses (i) through (xiv)date hereof is referred to herein as a “Company Contract”.
(b) The An accurate and complete copy of each Company Contract (including all amendments thereto) has been made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material ContractParent.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to Neither the Company and its Subsidiariesnor, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any other party to a Company Contract, is in material breach, violation or default under, or has received written notice that it has breached, violated or defaulted under (whether nor, to the knowledge of the Company, does there exist any condition under which, with the passage of time or not written) the giving of termination notice or cancellation of both, would reasonably be expected to cause such a breach, violation or default under), any Company Material Contract or that it intends material to seek to terminate or cancel any the Company’s operation of its business.
(d) Each Company Material Contract (whether as is a result valid, binding and enforceable obligation of the transactions contemplated hereby Company and, to the knowledge of the Company, of the other party or otherwiseparties thereto, in accordance with its terms and is in full force and effect, in each case except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law).
Appears in 1 contract
Sources: Merger Agreement (Stemcells Inc)
Contracts and Commitments. (a) As of the date of this Agreement, none other than as set forth in Section 3.13(a) of the Company or Disclosure Letter, neither the Company, any of its Subsidiaries nor any of their respective assets or properties is a party to or bound by any:
(i) “material contract” Contract (as such term is defined in Item 601(b)(10A) of Regulation S-K of relating to the SEC) with respect to disposition or acquisition by the Company or any of its Subsidiaries that was required of any assets (other than acquisitions or dispositions of assets in the ordinary course of business), business (whether by merger, sale of stock, sale of assets or otherwise) or real property prior to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementAgreement with any outstanding material obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations or payments) or a purchase price or sale price, in each case in excess of $2,000,000 or (B) pursuant to which the Company or any of its Subsidiaries will acquire any ownership interest in any other person or other business enterprise other than the Company’s Subsidiaries;
(ii) employment, individual consulting, severance, retention or similar contract with any officer, director, Employee or Independent Contractor that provides for annual base compensation of at least $300,000, other than Contracts terminable by the Company for any reason upon less than ninety (90) days’ notice without incurring any liability;
(iii) collective bargaining agreement or other Contract with any labor union, labor or trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract containing provisions (A) prohibiting prohibiting, restricting or materially limiting the right of the Company or any of its Subsidiaries to compete or to engage in any line or type of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party party, to conduct any business on a “most favored nations” basis with any third Person or to sell any product or service exclusively to a single partyparty or conduct any business on an exclusive basis with any third Person, or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(viv) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply in respect of any Product Indebtedness in excess of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit2,000,000, other than (A) accounts receivables and payables; payables in the ordinary course of business, (B) loans to direct or indirect wholly-wholly owned Subsidiaries, in Subsidiaries or other loans between or among the case of each of clauses (A) Company and (B), in its direct or indirect wholly owned Subsidiaries or between or among the ordinary course of business; Company’s Subsidiaries and (C) Indebtedness cash-pooling arrangements entered into between or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to among the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).;
Appears in 1 contract
Contracts and Commitments. (a) As Except for any Company Plans, as of the date of this Agreement, none of neither the Company or any of nor its Subsidiaries Subsidiary is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiary that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement Contract (A) relating to the disposition or Contract with acquisition by the Company or its Subsidiary of a material amount of assets (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business, or (2) prior to the date of this Agreement, that contains any labor unionmaterial ongoing obligations (including sale of inventory, trade organizationindemnification, works council “earn-out” or other employee representative body, Contract with a third-party professional employer organization, contingent obligations) that are still in effect that are expected to result in claims in excess of $2,000,000 or other Contract with any other third party which cannot be terminated with thirty (30B) days’ notice or less, under pursuant to which the Company or its Subsidiary will acquire any of its Subsidiaries obtains material ownership interest in any other person or other business enterprise other than the services of temporary or leased employeesCompany’s Subsidiary;
(iii) Contract relating to the acquisition establishing any joint venture, partnership, limited liability company or disposition of any product line, business or material asset of the Company or any of its Subsidiariescollaboration, in each case, with obligations remaining that is material to be performed or Liabilities continuing after the date of this AgreementCompany and its Subsidiary, taken as a whole;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Subsidiary to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Subsidiary to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or its Subsidiary to conduct any of its Subsidiaries has granted to business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiary on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(viv) Contracts in respect of Indebtedness of $5,000,000 or more (A) Third Party Component Contract whether incurred, assumed, guaranteed or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of secured by any Product of the Company or any of its Subsidiaries, and, in the case of this clause (Basset), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-wholly owned Subsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xivi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities;
(viii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets that have a fair market value or purchase price of more than $5,000,000 in favor of a party other than the Company or its Subsidiary;
(ix) Contract under which the Company or its Subsidiary is expected to make annual expenditures or receive annual revenues in excess of $3,000,000 during the current or a subsequent fiscal year;
(x) Contracts of the Company or its Subsidiary relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or its Subsidiary;
(xi) Contracts of the Company or its Subsidiary that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or its Subsidiary or otherwise prohibit, limit or restrict the pledging of capital stock of the Company or its Subsidiary or prohibit, limit or restrict the issuance of guarantees by the Company or its Subsidiary other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xii) Company Real Property leaseContracts with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Products that involve payments in excess of $1,000,000 during the current fiscal year;
(xiii) Contract with any Governmental Body under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues payments in excess of $500,000 during 2,000,000 were received by the 2024 Company in the most recently completed fiscal year;
(xiv) Contract between the Company Hedging, swap, derivative or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Bodysimilar Contract; or
(xv) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xv) above of this Section 4.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease listed in Section 4.11(b) of the Company Disclosure Letter and each IP Contract required to be listed in Section 4.14(e) of the Company Disclosure Letter, is referred to herein as a “Company Material Contract.”
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would notnot reasonably be expected to, individually or in the aggregate, reasonably be expected to be material to have a Company Material Adverse Effect, neither the Company and nor its SubsidiariesSubsidiary (A) is, taken as a wholeor has sent or received written notice that any other party to any Company Material Contract is, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination or material amendment of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiary, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this AgreementExcept for contracts, none commitments, agreements, leases, licenses, and other instruments disclosed in Section 4.25 of the Company or ------------ Disclosure Schedule (collectively, the "Material Contracts"), neither Company nor any of its Subsidiaries is a party to or bound by: (a) any agreements with any present employee, officer or director (or former employee, officer or director to the extent there remain at the date hereof obligations to be performed by any:
Company or any of its Subsidiaries), other than individual non-competition and/or confidentiality agreements with employees entered into in the ordinary course of business; (ib) “any material contract” agreements with a consultant, sales representative, agent or dealer not terminable upon 30 days written notice; (as such term is defined c) agreements or indentures relating to the borrowing of money or the deferred purchase price of property (in Item 601(b)(10) either case whether or not secured in any way), or any guarantee of Regulation S-K any of the SECforegoing, having a remaining balance on the date hereof in an amount exceeding $100,000 or in respect of which Company or one of its Subsidiaries is not authorized to prepay the related indebtedness on 30 days or less advance notice; (d) any partnership, joint venture, profit-sharing or similar agreement; (e) contracts, not entered into in the ordinary course of business on an arm's-length basis, that are material to Company; (f) any collective bargaining agreements, memoranda or understanding, settlements or other labor agreements with respect any union or labor organization applicable to Company, its Affiliates or their employees; (g) any agreements or arrangements for the acquisition or sale of any business of Company entered into since January 1, 2001 (or, without regard to such date, to the extent any indemnification or similar obligations of Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date exist as of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining or any such agreement or Contract with any labor unionarrangement, trade organizationregardless of when such agreement or arrangement was entered into, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which canthat has not be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person yet been consummated or in any geographical area, (B) obligating the Company or any respect of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make remaining obligations (whether by merger, sale or purchase of assets or stock, consolidation, share exchange or otherwise); (h) any milestone agreement which imposes non-competition or royalty non-solicitation restrictions, or other “earnout” any "exclusivity" or similar contingent provision or deferred payments potentially payable by the Company covenant, including any organizational conflict of interest prohibition, restriction, representation, warranty or notice provision or any of its Subsidiaries other restriction on future contracting set forth in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditCompany's Government Contracts, other than (A) accounts receivables and payables; (B) loans non-solicitation restrictions relating to direct clients' or indirect wholly-owned Subsidiaries, the Company's employees contained in the case of each of clauses (A) and (B), Company's contracts entered into in the ordinary course of business; (i) any employment, severance or other similar agreement which contains a change of control or "golden parachute" provision; and (Cj) Indebtedness or guarantees for Indebtedness, the principal amount of any other agreements to which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-is a party obligations (under or by which the Company they or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that their assets are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, bound and which indemnification obligations are not material to the business of the Company involves consideration or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues obligation in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)250,000.00 annually.
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As The “Contracts Schedule” attached hereto lists all of the date of this Agreement, none following Contracts to which any member of the Company or Group is a party, which are currently in effect, and by which any of its Subsidiaries is a party to them or bound by anytheir respective assets or properties are bound:
(i) “material contract” Contracts (as such term is defined in Item 601(b)(10or a group of related Contracts with the same party) which provide for the purchase of Regulation S-K goods or services by any member of the SEC) with respect to Company Group, under which the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing undelivered balance of such Form 10-K until the date products or services has a purchase price in excess of this Agreement$250,000;
(ii) collective bargaining agreement Contracts (or Contract a group of related Contracts with the same party) which provide for the sale of products or services by any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or lessmember of the Company Group, under which the Company undelivered balance of such products or any services has a sale price in excess of its Subsidiaries obtains $250,000 other than purchase orders for the services purchase of temporary or leased employeesinventory in the ordinary course of business;
(iii) Contract Contracts relating to the acquisition or disposition Indebtedness of any product line, business or material asset member of the Company Group, or under which any member of the Company Group has made advances or loans to any other Person other than advances made to employees with respect to business expenses in the ordinary course of business consistent with past practice;
(iv) Contracts with dealers, distributors or sales representatives that cannot be terminated by a member of the Company Group on no more than 90 days’ notice without material expense;
(A) Contracts relating to joint ventures, strategic alliances or partnerships; (B) Contracts for the sale of any of its Subsidiariesthe MATERIAL assets of any member of the Company Group other than in the ordinary course of business consistent with past practice or for the grant to any Person of any preferential rights to purchase any of the assets of any member of the Company Group; and (C) Contracts for the acquisition (by merger, purchase of stock or assets or otherwise) by any member of the Company Group of any operating business or MATERIAL assets or the capital stock of any other Person, in each case, with pursuant to which a member of the Company Group has any ongoing MATERIAL obligations remaining to be performed or Liabilities continuing after the date of this AgreementMATERIAL liabilities;
(ivvi) Contract establishing Contracts containing any joint ventures“non-competition”, partnerships“exclusivity” or other similar provision that restrains, profit sharesrestricts, material collaborations limits or similar arrangements;
(v) Contract (A) prohibiting or materially limiting impedes the right ability of any member of the Company or any of its Subsidiaries Group to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating area or that prohibits or restricts the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply solicitation for employment of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property persons (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries prohibitions and restrictions set forth in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable disclosure agreements entered into by the Company or any of its Subsidiaries in the aggregate over the term ordinary course of the Contract from and after the date of this Agreementbusiness consistent with past practice);
(ixvii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing licensing of money Proprietary Rights by any member of the Company Group to a third party or extension by a third party to a member of credit, other than the Company Group (A) accounts receivables and payables; (B) loans to direct or indirect whollyexcluding non-owned Subsidiaries, in the case of each of clauses (A) and (B), exclusive licenses entered into in the ordinary course of business);
(viii) (A) employment, consulting and non-competition Contracts with any employee, officer or consultant whose base annual compensation is equal to or greater than $100,000; (B) collective bargaining agreements or Contracts with any labor union or association representing any employee of any member of the Company Group; and (C) Indebtedness bonus, pension, profit sharing, retirement or guarantees for Indebtedness, the principal amount other form of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement)deferred compensation plan, other than as set forth on the “Employee Benefits Schedule”; and
(Aix) Contracts pursuant to which any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business member of the Company Group is a lessor of or permits any of its Subsidiaries;
(xi) Contract between the Companythird party to hold or operate any property, on the one handpersonal or real, and or is a lessee of, or holds or operates any Affiliate of the Company (other than a Subsidiary of the Company)personal property owned by another Person, on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under for which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of rental exceeds $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)250,000.
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in disclosed on the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeattached “Contracts Schedule”, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of no Contract set forth or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) the attached “Contracts Schedule” has been breached in any material respect by the member of the Company Disclosure Letter if such Contract was Group party thereto or, to the Company’s Knowledge, by the other party thereto (which has not been duly cured), or canceled by the other party; (ii) no member of the Company Group is in effect as receipt of any written claim of default dated less than three months prior to the date of this Agreement, a “Company Material Contract” and, collectively, Agreement under any Contract listed or required to be listed on the “Company Material ContractsContracts Schedule”) ; and (iiiii) each Contract listed or required to be listed on the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material attached “Contracts Schedule” is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As or one or more members of the date of this AgreementCompany Group, no party to any Company Material Contract has given any written noticeas applicable, except as such enforceability may be limited by (A) applicable insolvency, bankruptcy, reorganization, moratorium or to the knowledge of the Companyother similar Laws affecting creditors’ rights generally, any notice and (B) applicable equitable principles (whether considered in a proceeding at law or not written) in equity). The Company has made available to Purchaser correct and complete copies of termination each Contract listed or cancellation of any Company Material Contract required to be listed on the “Contracts Schedule”, together with all amendments, modifications or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).supplements thereto;
Appears in 1 contract
Sources: Merger Agreement (Nordson Corp)