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. Except as set forth in Section 3.18 of the Seller Disclosure Letter, neither Company nor any of its Subsidiaries is a party to:
(a) As any partnership agreements or joint venture agreements which require a payment, or delivery of assets or services beyond the 2006-2007 ski season and which are not terminable by the applicable Company on 30 days or less notice without penalty to the applicable Company or any of its Subsidiaries, or which contain exclusivity arrangements which will be binding upon Affiliates of the date of this Agreementapplicable Company (other than a Subsidiary thereof) following the Closing;
(b) any agreement pursuant to which the applicable Company or its Subsidiaries 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 Company or its Subsidiaries 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 Company or its Subsidiaries 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 assets;
(f) any agreement relating to the acquisition by the applicable Company or its Subsidiaries of any operating business or 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 other than ASC-Level Financings;
(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 Company trademarks, tradenames and the like in connection with promotional activities) (i) granting or obtaining any right to use any Intellectual Property or (ii) restricting the rights of the applicable Company or any of its Subsidiaries, or permitting other Persons, to use or register any Intellectual Property of the applicable Company;
(i) any material agreements under which the applicable Company or its Subsidiaries has made advances or loans to any entity or individual (which shall not include advances made to an employee of the applicable Company in the ordinary course of business consistent with past practice); or
(j) except for agreements described in Section 3.18(a), any other agreement (or group of related agreements) the performance of which presently requires aggregate payments be made to or from the Company or any of its Subsidiaries in excess of $100,000 per year. Each of the contracts to which either 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) 3.18 of the Company Seller 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”) ), a true and (ii) complete copy of each of which has been delivered or made available to the Company’s knowledge, as of Buyer prior to the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts hereof 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 Company, enforceable against it 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). With respect to each Material Contract, neither the applicable Company and nor its Subsidiaries (to the extent party thereto) andnor, to the Company’s knowledgeKnowledge of the Companies, 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 the Companies, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or default by the applicable Company or its Subsidiaries or, to the Knowledge of the Companies, 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 3 contracts
Sources: Purchase Agreement (Peak Resorts Inc), Purchase Agreement (Peak Resorts Inc), Purchase Agreement (American Skiing Co /Me)
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 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. 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. 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 E-65 longer than thirty (as such term is defined 30) days an without liability, penalty or premium or (ii) are excepted from 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 cancellable 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 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 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. 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 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 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 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 Except for any Company Plans (excluding with respect to Section 4.13(a)(iii)), 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, 20232025, 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 or acquisition by the Company or its Subsidiary of a material amount of assets, other than the purchase or sale of inventory, raw materials, drug products or substances by the Company or its Subsidiary, that contains any material ongoing obligations (including, indemnification, “earn-out” or other contingent obligations) that are still in effect or (B) pursuant to which the Company or its Subsidiary will acquire any ownership interest in any other Person or other business enterprise other than the Company’s Subsidiary;
(iii) collective bargaining agreement or similar Contract with any labor union, trade organizationunion, works council council, employee’s association or other similar 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 venturesventure, partnershipspartnership, profit shares, material collaborations or similar arrangementscollaboration;
(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 material service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or material service exclusively to a single party, (C) under which requiring the Company or its Subsidiary (or, after the Closing, Parent or any of its Subsidiaries has granted 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 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 Contracts in respect of Indebtedness for borrowed money of $250,000 or (B) more, other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of than intercompany loans among the Company or any of and 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 periodSubsidiary;
(vii) Contract pursuant to which between 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 their respective directors, officers or other Affiliates (other than a Subsidiary of the CompanyCompany and its Subsidiary), on the other hand;
(viii) Contract (i) 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 its Subsidiary or (ii) standstill or similar provision that prohibits or purports to prohibit a proposal being made in favor of a party other than the Company or its Subsidiary;
(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 that have a fair market value or purchase price of more than $1,000,000 in favor of a party other than the Company or its Subsidiary;
(x) Contract pursuant to which the Company or its Subsidiary (A) receives a license, sublicense, covenant not to sue, right to use, option, right of first refusal or first offer or other similar preferential right or immunity with respect to any Intellectual Property of a third party that is material to the conduct of the Company’s business or the conduct of its Subsidiary’s businesses or (B) has granted to a third party a license, sublicense, covenant not to sue, right to use, option, right of first refusal or first offer or other similar preferential right or immunity with respect to or under any Owned Intellectual Property or Licensed Intellectual Property that is material to the conduct of the Company’s business or the conduct of its Subsidiary’s businesses, in each case, (A) and (B), other than any Incidental IP Contract;
(xi) Contract that requires by its terms, or is reasonably expected to require, the payment or delivery of cash or other consideration to or by the Company or its Subsidiary in an amount in excess of $4,000,000 during (A) the current fiscal year or (B) any subsequent fiscal year, and in the case of clause (B) which cannot be cancelled by such the Company or its Subsidiary without penalty or further payment upon not more than ninety (90) days’ notice;
(xii) Company Real Property leasecorporate integrity agreements, consent decrees, deferred prosecution agreements, or other similar types of agreements with Governmental Bodies that have existing or contingent performance obligations;
(xiii) Contract under which 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;
(xiv) 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;
(xv) Contracts with third party manufacturers and suppliers for the Company’s Subsidiaries made annual expenditures manufacture and/or supply of materials or received annual revenues products in the supply chain for Products that involve payments in excess of $500,000 4,000,000 during the 2024 current or a subsequent fiscal year;
(xivxvi) Contract between Contracts that (A) provide for the Company research, development, commercialization or manufacture of any of Key Product and (B) are material the Company’s Subsidiaries, on the one handbusiness with respect to such Key Product, and any Governmental Body, on in each case that involve payments in excess of $4,000,000 during 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
(xvxvii) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv).
xvii) above of this (ba) The 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 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, Lease listed in Section 3.12(a4.11(b) of the Company Disclosure Letter (eachbut excluding, together with any Contract entered into after the date of this Agreement but would be required in all cases, each Company Plan, 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 “.”
(b) (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 its Subsidiary (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, 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 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). There are no oral Company Material Contracts.
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 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 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 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 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 Subsidiaries;
(ii) Contract (A) relating to be, but has not been, filed with the SEC with disposition or acquisition by the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, Company or any Company SEC Documents filed of its Subsidiaries of a material amount of assets (1) after the date of filing of such Form 10-K until 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 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 $1,000,000 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;
(iiiii) 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 sharesalliance, material collaborations development, co-development, co-promotion or similar arrangementsprofit-sharing, or collaboration in each case that contemplates payments in excess of $1,000,000 in any calendar year;
(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 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 on an exclusive basis to any Person or group of Persons or in any geographical area;
(vi) Contracts (A) in respect of Indebtedness for borrowed money in excess of $1,000,000 other than intercompany loans among the Company and its Subsidiaries or (B) pursuant to which any assets 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 Subsidiaries are subject 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 periodLiens;
(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 that have a fair market value or purchase price of more than $1,000,000 or any equity interests;
(x) 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 is expected to each make annual expenditures or receive annual revenues in excess of $2,500,000 in the aggregate;
(xi) corporate integrity agreements, consent decrees, deferred prosecution agreements, or other similar types of Contracts with Governmental Bodies that have existing or contingent performance obligations;
(xii) Contracts of the Company Material or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing obligations on the part of the Company or any of its Subsidiaries;
(xiii) 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;
(xiv) 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 $1,000,000 during the current or a subsequent fiscal year;
(xv) Contract pursuant to which the Company or any Company Subsidiary has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment by the Company or any Company Subsidiary of more than $2,500,000 in the aggregate over a 12-month period, in either milestone or contingent payments or royalties, upon (A) the achievement of regulatory or commercial milestones or (B) the receipt of revenue or income based on product sales;
(xvi) Contract which provides for a loan or advance in excess of $50,000 to any employee of the Company or any temporary agency employee, consultant or other independent contractor of the Company or any Company Subsidiary, other than travel, business and similar advances to the Company’s employees in the ordinary course of business consistent with past practice or loans under the Company 401(k) Plan;
(xvii) hedging, derivative or similar Contract (including any interest rate, currency or commodity swap agreement, cap agreement, collar agreement or any similar Contract designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices);
(xviii) Contract with any contract research organization and resulted in the payment by the Company or any Company Subsidiary of more than $2,500,000 in calendar year 2023 or is not expected to involve payment by the Company or any Company Subsidiary of more than $2,500,000 in breach thereof or in default thereundercalendar year 2024;
(xix) any IP Contract; or
(xx) Contract to enter into any of the foregoing. Each such Contract described in clauses (i) through (xxiii) above of this (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.”
(i) Except as would not have a Company Material Adverse Effect, 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 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 such Company Material 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 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 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 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 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 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 of Except as specifically contemplated by this Agreement and except as set forth on the date of this Agreement"Contracts Schedule" attached hereto, none of the Company or any of its Subsidiaries is not a ------------------ party to or bound by by, whether written or oral, any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) collective bargaining agreement or contract with respect to the Company any labor union or any of its Subsidiaries that was required to bebonus, but has not beenpension, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31profit sharing, 2023, retirement or any Company SEC Documents filed after the date other form of filing of such Form 10-K until the date of this Agreementdeferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) collective bargaining agreement or Contract with any labor unioncontract for the employment of any officer, trade organization, works council individual employee or other employee representative body, Contract with person on a thirdfull-party professional employer organization, time or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company consulting basis or any of its Subsidiaries obtains the services of temporary or leased employeesseverance agreements;
(iii) Contract relating to the acquisition agreement 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 indenture relating to the borrowing of money or extension to mortgaging, pledging or otherwise placing a Lien on any of creditits assets;
(iv) agreements with respect to the lending or investing of funds;
(v) license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) accounts receivables and payables; lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $10,000 annually;
(Bviii) loans lease or agreement under which it is lessor of or permits any third party to direct hold or indirect wholly-operate any property, real or personal, owned Subsidiaries, or controlled by it (other than leases of equipment in the case Ordinary Course of each Business);
(ix) contract or group of clauses (A) and (B)related contracts with the same party continuing over a period of more than six months from the date or dates thereof, in the ordinary course of business; and (C) Indebtedness not terminable by it on 30 days or guarantees for Indebtedness, the principal amount of which does not exceed less notice without penalties or involving more than $50,00010,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under contract 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 prohibits it from freely engaging in business anywhere 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;world; or
(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 agreement material to it whether 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 not entered into any Contract of the type described in the foregoing clauses (i) through (xiv)Ordinary Course of Business.
(b) The Except as disclosed on the Contracts Schedule, (i) no contract ------------------ or commitment required to be disclosed on the Contracts Schedule has been ------------------ breached or cancelled by the other party and the Sellers have no knowledge of any anticipated breach by any other party to any contract required to be set forth on the Contracts Schedule, (ii) no customer or supplier has indicated in ------------------ writing or orally to the Company or any Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has made available performed all the obligations required to Parent be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule ------------------ and is not in default under or in breach of any contract or commitment required to be disclosed on the Contracts Schedule, and no event has occurred which with ------------------ the passage of time or the giving of notice or both would result in a default or breach thereunder, (iv) the Company has no present expectation or intention of not fully performing any obligation pursuant to any contract required to be set forth on the Contracts Schedule, and (vi) each agreement required to be set ------------------ forth on the Contracts Schedule is legal, valid, binding, enforceable and in ------------------ full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Sellers have provided the Purchaser with 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 contracts which are required to be listeddisclosed on the Contracts Schedule, in Section 3.12(a) of the Company Disclosure Letter (each, each case together with any Contract entered into after all amendments, waivers or other ------------------ changes thereto (all of which are disclosed on the date Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of this Agreement but would be all material ------------------ terms of all oral contracts 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)thereon.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Equipment Services Inc)
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 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 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 of Except as specifically contemplated by this Agreement and except as set forth on the date of this Agreement"Contracts Schedule" attached hereto, none of the Company or any of its Subsidiaries is not a ------------------ party to or bound by by, whether written or oral, any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) collective bargaining agreement or contract with respect to the Company any labor union or any of its Subsidiaries that was required to bebonus, but has not beenpension, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31profit sharing, 2023, retirement or any Company SEC Documents filed after the date other form of filing of such Form 10-K until the date of this Agreementdeferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) collective bargaining agreement or Contract with any labor unioncontract for the employment of any officer, trade organization, works council individual employee or other employee representative body, Contract with person on a thirdfull-party professional employer organization, time or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company consulting basis or any of its Subsidiaries obtains the services of temporary or leased employeesseverance agreements;
(iii) Contract relating to the acquisition agreement 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 indenture relating to the borrowing of money or extension to mortgaging, pledging or otherwise placing a Lien on any of creditits assets;
(iv) contract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $10,000;
(v) agreement under which the Company has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(vi) agreements with respect to the lending or investing of funds;
(vii) license or royalty agreements;
(viii) guaranty of any obligation, other than endorsements made for collection;
(Aix) accounts receivables and payables; (B) loans to direct lease or indirect wholly-agreement under which it is lessee of, or holds or operates, any personal property owned Subsidiaries, by any other party calling for payments in the case excess 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 $50,00010,000 annually;
(x) Contract providing for any guaranty by the Company lease or any of its Subsidiaries of third-party obligations (agreement under which the Company it is lessor of or permits any of its Subsidiaries has continuing obligations as of the date of this Agreement)third party to hold or operate any property, other than (A) any guaranty real or personal, owned or controlled 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 Subsidiariesit;
(xi) Contract between contract or group of related contracts with the Companysame party continuing over a period of more than six months from the date or dates thereof, not terminable by it on the one hand, and any Affiliate of the Company (other 30 days or less notice without penalties or involving more than a Subsidiary of the Company), on the other hand$10,000;
(xii) Company Real Property lease;contract which prohibits it from freely engaging in business anywhere in the world; or
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures other agreement material to it whether 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 not entered into any Contract of the type described in the foregoing clauses (i) through (xiv)Ordinary Course of Business.
(b) The Except as disclosed on the Contracts Schedule, (i) no contract or ------------------ commitment required to be disclosed on the Contracts Schedule has been breached ------------------ or canceled by the other party and neither the Company nor any Seller has knowledge of any anticipated breach by any other party to any contract set forth on the Contracts Schedule, (ii) no customer or supplier has indicated in writing ------------------ or orally to the Company, or any Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has made available performed all the obligations required to Parent be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in ------------------ default under or in breach of any contract or commitment required to be disclosed on the Contracts Schedule, and no event has occurred which with the ------------------ passage of time or the giving of notice or both would result in a default or breach thereunder, (iv) the Company has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on the Contracts Schedule, and (vi) each agreement is legal, valid, binding, ------------------ enforceable and in full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Sellers have provided the Purchaser with 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 contracts which are required to be listeddisclosed on the Contracts Schedule, in Section 3.12(a) of the Company Disclosure Letter (each, each case together with any Contract entered into after all amendments, waivers or other ------------------ changes thereto (all of which are disclosed on the date Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of this Agreement but would be required all material ------------------ terms of all oral contracts 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 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)therein.
Appears in 1 contract
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 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. (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 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 that was required to be, but has not been, filed with the SEC with and listed in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023K, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) collective bargaining agreement Contract (other than Development Contracts relating to the Parent Development Properties) that (individually or Contract together with any labor union, trade organization, works council additional related Contracts with the same Person or other employee representative body, Contract with a third-party professional employer organization, its Affiliates) involves the payment or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which receipt of amounts by the Company or any of its Subsidiaries obtains of more than $70,000,000 in the services of temporary aggregate in the calendar year ended December 31, 2024 or leased employeesany subsequent calendar year that cannot be cancelled at any time by the Company or its applicable Subsidiary without penalty or further payment on no more than sixty (60) days’ notice;
(iii) Contract (A) relating to the disposition or acquisition (or disposition option to acquire), directly or indirectly (by merger, sale of any product linestock, business sale of assets, or material asset of otherwise), by the Company or any of its SubsidiariesSubsidiaries of any business, rights, equity interests or assets, other than the sale of inventory in each casethe ordinary course of business, with obligations remaining which contains any ongoing financial obligations, indemnification, “earn-out” or milestone payments or other contingent payment or any obligation to be performed or Liabilities continuing provide any guarantee thereunder that are still in effect that are reasonably likely to result in claims in excess of $2,000,000 after the date hereof or (B) that involves a purchase or sale price in excess of this Agreement$2,500,000;
(iv) Contract establishing that is a partnership, strategic alliance, joint venture, limited liability company agreement or similar Contract 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 providing for material indemnification by the Company or materially limiting the right of any its Subsidiaries or requiring the Company or any of its Subsidiaries to provide a guarantee thereunder, other than indemnification obligations in commercial agreements in the ordinary course of business or indemnification agreements with current or former officers or directors of the Company;
(vi) Contract (A) prohibiting or materially limiting in any material respect the right of the Company or its Subsidiaries (1) to compete in any line of business or (2) to conduct business with any Person or in any geographical area, territory, (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 has been granted the right to manufacture, sell, market or distribute any Product or service 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, territory or (D) containing any “most favored nationsnation” or similar most favored customer provision, preferential terms and conditions (including with respect to pricing) granted by the Company right or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first or last 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 periodrefusal;
(vii) Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any material assets or any equity interests of any Person (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Personexcluding, which Intellectual Property is used by in respect of the foregoing, 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 Convertible Notes and agreements solely between the Company or any of and its Subsidiaries to another Person (other than an Affiliatewholly owned Subsidiaries), 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 required to which be listed on Section 4.21(a) of 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 AgreementDisclosure Letter;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to that evidence indebtedness for borrowed money of the borrowing Company or any Subsidiary thereof (whether secured or unsecured (but in each case, excluding ordinary course extensions of money trade credit (such as funding of customer non-recurring charges))) having an aggregate principal (or extension committed amount) of credit$10,000,000 or more, other than intercompany Indebtedness to or among the Company and its Subsidiaries or among any of its Subsidiaries;
(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) Electric Contract pursuant to which the Company or any of its Subsidiaries have contracted for electric delivery capacity or energy supply (or both) of at least 20 megawatts per calendar year;
(xii) 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 or imposed by any Governmental Body, in each case that has existing or contingent performance or payment obligations;
(xiii) Contract of the Company or any of its Subsidiaries pursuant to which (A) accounts receivables the Company or any of its Subsidiaries licenses or obtains any right or covenant not to be sued with respect to any Intellectual Property from a Third Party that is material to the conduct of Company’s and payables; its Subsidiaries’ businesses (other than for off-the-shelf technology or Software that are generally available on non-discriminatory commercial terms), or (B) loans a Third Party licenses or obtains any right or covenant not to direct be sued with respect to any Intellectual Property from the Company or indirect whollyany of its Subsidiaries (other than non-owned Subsidiaries, in the case of each of clauses (A) and (B), exclusive licenses in the ordinary course of business; and (C) Indebtedness , including to customers or guarantees for Indebtedness, vendors in connection with the principal amount sale or licensing of which does not exceed $50,000any products or services);
(xxiv) Contract providing of the Company or any of its Subsidiaries relating to the settlement of any Action that provides for any guaranty continuing material 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 $2,500,000;
(xv) any Development Contract, in each case, that involves the receipt or payment by the Company or any of its Subsidiaries of third-party obligations amounts in excess of $50,000,000 in the aggregate in any fiscal year; and
(under which xvi) any Data Center Customer Contract that involves the receipt or payment of amounts in excess of $10,000,000 in the aggregate in any fiscal year by the Company or any of its Subsidiaries;
(xvii) Contract of the Company or any of its Subsidiaries has continuing obligations as that prohibits, materially limits or materially restricts the payment of dividends or distributions in respect 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 capital stock of the Company or any of its Subsidiaries;
(xixviii) Contract between the Companyany Contract, subcontract, agreement, license, sublicense, lease, sublease, instrument, indenture, promissory note or other legally binding commitment or undertaking that creates or grants any Lien, other than Permitted Liens, on any Owned Real Property securing obligations in an amount exceeding, individually or in the one handaggregate, and $1,000,000;
(xix) any Affiliate Contract that relates to the acquisition of any real property or sale of Owned Real Property or the granting of any right of first offer, right of first refusal or other option to purchase or sell any interest in real property (“Property Material Contracts);
(xx) that is required to be disclosed under Item 404 of Regulation S-K promulgated under the 1933 Act;
(xxi) (A) with any beneficial owner (as defined in Rule 13d-3 under the 1934 Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries who has filed a Schedule 13D or Schedule 13G under the 1934 Act (other than or, to the Company’s Knowledge, is required to make such a filing) since January 23, 2024, or (B) that is required to be disclosed under Item 404 of Regulation S-K promulgated under the 1933 Act;
(xxii) any (A) Company Space Lease and (B) Real Property Lease pursuant to which the Company or any of its Subsidiaries is a tenant as of the date of this Agreement, except for any Real Property Lease for which the aggregate annual rent payments do not exceed $1,000,000;
(xxiii) except for any capital contribution requirements as set forth in the organizational documents of any Joint Venture Entity provided to Parent prior to the date hereof, requires the Company or any of its Subsidiaries to make any investment (in each case, in the form of a loan, capital contribution or similar transaction) in any non-wholly owned Subsidiary of the Company), on the Company or 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 $500,000 during the 2024 fiscal year1,000,000);
(xivxxiv) Contract relates to a forward equity sale or similar transaction;
(xxv) containing any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever;
(xxvi) is between the Company or any of the Company’s Subsidiaries, on the one hand, its Subsidiaries and any a Governmental Body, on or has been entered into by the other hand, other than Company or any such Contracts the primary purpose of which is the sale of its Subsidiaries as a subcontractor at any Products or Services to such tier in connection with a Contract between another Person and a Governmental Body; orand
(xvxxvii) Contract any commitment by the Company or any of its Subsidiaries to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xivxxviii) of this Section 4.14(a), together with each Company Real Property Lease with annual rent in excess of $3,000,000 is referred to herein as a “Company Material Contract.”
(b) The Company Parent has made available been given access to Parent a true true, correct and correct complete copy as of the date hereof of all written Company Material ContractsContracts in effect as of the date hereof, together with any and all material amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contractthereto.
(c) Except as 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 any of its Subsidiaries (and A) is, or has received notice that any Third 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 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 knowledgeKnowledge, as there has occurred no event giving to any Third Party any right of the date termination, amendment or cancellation of this Agreement, the parties other than the Company (with or without notice or lapse of time or both) any of its Subsidiaries to each of the 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, except as enforcement may be limited by the Enforceability Exceptions. As Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreementhereof, no party to any Company Material Contract has given any written noticenotice of termination, cancellation or materially adverse (to the knowledge of the Company, any notice (whether or not writtenCompany and its Subsidiaries) of termination or cancellation amendment of any Company Material Contract or that it intends to seek to terminate or cancel or amend the terms and conditions of any Company Material Contract (whether as in a result of manner that is materially adverse to the transactions contemplated hereby or otherwise)Company and its Subsidiaries.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Core Scientific, Inc./Tx)
Contracts and Commitments. (a) As Section 2.15 of the date of this AgreementStockholder Disclosure Schedule lists the following contracts and agreements to which the Company is a party, none which are currently in effect, whether oral or written (each, a “Contract”), other than Contracts disclosed in Sections 2.12, 2.18 or 2.19 of the Company or any of its Subsidiaries is a party to or bound by anyStockholder Disclosure Schedule:
(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 any joint venture 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 Agreementpartnership Contract;
(ii) collective bargaining agreement any Contract for the employment or Contract with engagement of any labor unionofficer, trade organizationindividual Service Provider or consultant or relating to severance pay for any such Person, 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 except for offer letters in substantially the Company or any of its Subsidiaries obtains the services of temporary or leased employeesform made available to Higher One;
(iii) any confidentiality Contract relating to the acquisition or disposition of any product line, business or material asset of other than confidentiality Contracts entered into by the Company or any in the Ordinary Course of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementBusiness;
(iv) any Contract establishing any joint ventures, partnerships, profit shares, material collaborations relating to the voting or similar arrangementscontrol of the Shares or the election of directors of the Company;
(v) any Contract (Aincluding any indenture) 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 placing a Lien on any of credit, other than the assets of the Company;
(Avi) accounts receivables and payables; any guaranty of any obligation for borrowed money or otherwise;
(Bvii) loans to direct any lease Contract under which it is lessor or indirect wholly-owned Subsidiaries, lessee of any personal property;
(viii) any Contract or group of related Contracts with the same party for the purchase by the Company of products or services under which the undelivered balance of such products or services is in excess of $25,000 over the case remaining term of each the Contract;
(ix) any Contract or group of clauses (A) and (B), in related Contracts with the ordinary course same party for the sale by the Company of business; and (C) Indebtedness products or guarantees for Indebtedness, the principal amount of which does not exceed $50,000services;
(x) any Contract providing or group of related Contracts with the same party not otherwise disclosed in Section 2.15 of the Stockholder Disclosure Schedule (other than any Contract or group of related Contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days’ or less notice without penalty and involving more than $25,000 over the remaining term of the Contract;
(xi) any guaranty by Contract which prohibits the Company or any other Affiliate or any of its Subsidiaries of third-party obligations (under their Service Providers from freely engaging in any business, or which prohibits the Company or any of its Subsidiaries has continuing obligations as other Affiliate from soliciting customers, alternative suppliers or any other business, anywhere in the world, including any Contract containing exclusivity provisions;
(xii) any Contract for the distribution of the date products or services of the Company (including any distributor, broker and sales Contract);
(xiii) any franchise Contract, marketing Contract, or royalty Contract;
(xiv) any Contract or commitment for capital expenditures in excess of $10,000;
(xv) any Contract for the sale of any capital asset;
(xvi) any Contract not otherwise disclosed in Section 2.15 of the Stockholder Disclosure Schedule but providing for payments in excess of $25,000 in any calendar year;
(xvii) any Contract under which the rights of the Company may be adversely affected in any material respect as a result of transactions contemplated by this Agreement), other than ;
(Axviii) any guaranty power of attorney granted by the Company to any regulatory authority or other Person; and (xix) any Contract not otherwise disclosed in Section 2.15 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 Stockholder Disclosure Schedule which is primarily for something other than such indemnification obligations, and which indemnification obligations are not either material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one handtaken as a whole, 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 was not entered into any Contract of the type described in the foregoing clauses (i) through (xiv)Ordinary Course of Business.
(b) The Company has made available performed all of its material obligations required to Parent be performed by it at or prior to the Closing under the Contracts required to be disclosed in the Stockholder Disclosure Schedule and is not in default in any material respect, and, to the Knowledge of the Executive Officers and Stockholders, is not in receipt of any written claim of a default under any such Contract. The Company has no present expectation or intention of not fully performing any material obligation pursuant to any such Contract or commitment required to be disclosed in the Stockholder Disclosure Schedule. To the Knowledge of the Executive Officers and Stockholders, there is no current material breach or anticipated material breach by any other party to any such Contract. No party to any Contract has indicated to the Company in writing that it intends to terminate such Contract.
(c) Prior to the date of this Agreement, Higher One has been supplied with or given an opportunity to review a true and correct copy of all each written Company Material Contracts, together with any and all amendments thereof and waivers thereunderContract, and a correct and complete written summary setting forth the terms and conditions description of each oral Company Material Contract.
(c) Except as would not, individually or referred to 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 Stockholder 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 Schedule (whether or not writtenunder the caption referencing this Section 2.15), together with all material amendments, waivers or other changes thereto. Section 2.15(c) of termination or cancellation of any Company Material the Stockholder Disclosure Schedule lists each oral Contract or that it intends referred to seek to terminate or cancel any Company Material Contract in the Stockholder Disclosure Schedule (whether as or not under the caption referencing this Section 2.15), and sets forth a result description of the transactions contemplated hereby or otherwise)material terms thereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Higher One Holdings, Inc.)
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. (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 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. 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 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 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 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 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 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. (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 Agreement, none of Neither the Company or nor any of its Subsidiaries is a party to to, or is bound by anyby, any Contract:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect providing for aggregate future noncontingent payments by or to the Company or any of its Subsidiaries in excess of $500,000 in any fiscal year, other than Contracts with an employee, consultant or independent contractor relating to employment or the provision of services or Contracts that was required are terminable upon 90 days or fewer notice or that expire 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 their terms no later than 120 days after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) collective bargaining agreement limiting the freedom of the Company to engage in any line of business or Contract sell, supply or distribute any service or product (including with respect to the pricing thereof), or to compete with any labor union, trade organization, works council entity or other employee representative body, Contract with a third-party professional employer organizationto conduct business in any geography, or that grants any exclusive rights to any party (other Contract with than any other third party (x) non-exclusive licenses entered into in the ordinary course of business, (y) Contracts for which cannot be terminated with thirty (30) days’ notice noncontingent payments by or less, under which to the Company or any of its Subsidiaries obtains do not exceed $500,000 in any fiscal year or (z) Contracts that are terminable upon 90 days or fewer notice or that expire pursuant to their terms no later than 120 days after the services of temporary date hereof) where such limitations or leased employeesrestrictions would have a Material Adverse Effect;
(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 involving any joint venturesventure, partnerships, profit shares, material collaborations partnership 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 arrangement that 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, ;
(iiv) pursuant to which the Company is not or any Subsidiary incurs, assumes or guarantees any Indebtedness for borrowed money in excess of $500,000;
(and v) containing severance or termination pay Liabilities related to termination of employment in excess of $200,000 (individually to any employee);
(vi) providing for the Company’s knowledge is not alleged supply, manufacturing, distribution or development of Company Products (where the remaining aggregate noncontingent payments to beor by the Company are in excess of $500,000);
(vii) in breach of or default under any Contract listedproviding for the acquisition, transfer, in-bound licensing, out-bound licensing, development, co-development, or required to be listed, in Section 3.12(a) sharing of any material Intellectual Property or Software or materially affecting the Company Disclosure Letter (each, together with any Contract entered into after the date ability 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 use or disclose any Intellectual Property or Software (other than license agreements providing for for commercially available software on standard terms and non-exclusive distribution, reseller and end-user customer and other non-exclusive agreements entered into in the ordinary course of business);
(viii) that prohibits the payment of dividends or distributions in respect of the share capital of the Company or any of its Subsidiaries, prohibits the pledging of the share capital of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by any of its Subsidiaries;
(ix) that is a Collective Bargaining Agreement;
(x) that provided for any acquisition of another entity by the Company or its Subsidiaries pursuant to which the Company or any of its Subsidiaries has continuing indemnification, "earn out" or other contingent payment or guarantee obligations; or
(xi) that contains any material covenant granting "most favored nation" status that, following the Merger, would apply to or be affected by actions taken by Parent, the Surviving Company and/or their respective Subsidiaries or Affiliates. Each Contract of the type described in the immediately preceding sentence, together with each of the Leased Real Property Subleases and Leases set forth on Section 3.11(d) of the Company Disclosure Letter, is collectively referred to herein as a "Company Material Contracts is not in breach thereof Contract." The Company has heretofore made available to Parent a complete and correct copy of each Company Material Contract, including any amendments or in default thereunder. modifications thereto.
(b) Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against on the Company and or its Subsidiaries (to the extent Subsidiary party thereto) thereto and, to the Knowledge of the Company’s knowledge, each other party thereto. As , and is in full force and effect, and, to the Knowledge of the date Company, enforceable against each other party thereto (in each case, subject to the Bankruptcy and Equity Exception), and the Company and each of this Agreementits Subsidiaries have performed all obligations required to be performed by them under each Company Material Contract and, no to the Knowledge of the Company, each other party to any each Company Material Contract has given any written noticeperformed all obligations required to be performed by it under such Company Material Contract, or in each case except as would not reasonably be expected to have a Company Material Adverse Effect. To the knowledge Knowledge of the Company, the Company has not received during the last twelve (12) months, notice of any violation or default under (or any condition that with the passage of time or the giving of notice, or both, would cause such a violation of or default under) any Company Material Contract, except for violations or defaults that would not have or reasonably be expected to have a Company Material Adverse Effect.
(c) To the Knowledge of the Company, as of the date hereof, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time), would reasonably be expected to: (whether i) result in a material violation or not written) breach of termination or cancellation any provision of any Company Material Contract or that it intends Contract, (ii) give any Person the right to seek to terminate or cancel declare a default under any Company Material Contract Contract, or (whether iii) give any Person the right to cancel terminate or modify any Company Material Contract, in each case, as would not have or would reasonably be expected to have a result of the transactions contemplated hereby or otherwise)Company Material Adverse Effect.
Appears in 1 contract
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 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.)