Contracts and Commitments. (a) As of the date of this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any: (i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement; (ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees; (iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement; (iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements; (v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries; (vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period; (vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries; (viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement; (ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000; (x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries; (xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand; (xii) Company Real Property lease; (xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year; (xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or (xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv). (b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract. (c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Quanterix Corp), Merger Agreement (Akoya Biosciences, Inc.), Merger Agreement (Akoya Biosciences, Inc.)
Contracts and Commitments. (a) As of the date of this Agreement, none except as set forth on Section 3.13 of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiaries; provided, however, that was required any “material contract” that has been made publicly available pursuant to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after or included on Section 3.17 of the date Company Disclosure Letter will be excluded from Section 3.13 of filing of such Form 10-K until the date of this AgreementCompany Disclosure Letter;
(ii) collective bargaining agreement Contract relating to the disposition, transfer or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which acquisition by the Company or any of its Subsidiaries obtains of any material tangible or intangible assets (or ownership interest in any other Person or other business enterprise) (A) after the services date of temporary this Agreement, other than the sale of inventory in the ordinary course of business, or leased employees(B) prior to the date of this Agreement, that contains any material ongoing obligations of the Company (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are expected to result in claims in excess of $100,000;
(iii) Contract relating to the acquisition establishing any joint venture, partnership or disposition of any product line, business or material asset of the Company or any of its Subsidiariescollaboration, in each case, with obligations remaining that is material to be performed or Liabilities continuing after the date of this AgreementCompany and its Subsidiaries, taken as a whole;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(v) Contract in respect of Indebtedness of $500,000 or more, (D) containing other than any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted Indebtedness owed by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right Subsidiary to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesother Subsidiary;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Softwarea Company Plan) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities, or any stockholders’, investor rights, tax receivables or similar or related Contracts with respect to any securities of the Company or any of its Subsidiaries;
(viii) Contract containing a right of first refusal, right of first negotiation, right of first offer, option or other similar rights with respect to any equity interests or assets that have a fair market value or purchase price of more than $50,000 in favor of a party other than the Company or its Subsidiaries;
(ix) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $500,000 during the current or a subsequent fiscal year;
(x) Contract relating to the settlement of any litigation proceeding that provides for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xi) Contract that prohibits, limits, restricts or requires the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibits, limits, restricts or requires the pledging of capital stock of the Company or any of its Subsidiaries or prohibits, limits, restricts or requires the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xii) Contract with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Company Real Property leaseProducts that involve payments in excess of $500,000 during the current or a subsequent fiscal year;
(xiii) Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, extension of credit or capital contribution to, or other investment in, any Person that is not a Subsidiary of the Company (other than extensions of credit to customers in the ordinary course of business and advances to directors, officers and other employees for travel and other business-related expenses, in each case, in the Company’s Subsidiaries made annual expenditures or received annual revenues in excess ordinary course of $500,000 during the 2024 fiscal yearbusiness);
(xiv) Contract between with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Shares, or to the Knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Contracts pursuant to Company Equity Awards);
(xv) Labor Agreement;
(xvi) any employment or consulting Contract (in each case with respect to which the Company or any of its Subsidiaries has continuing obligations as of the date hereof) with any current or former (A) officer of the Company’s Subsidiaries, on (B) member of the one handCompany Board, and any Governmental Bodyor (C) employee, on individual independent contractor, or individual consultant of the other hand, other than any such Contracts the primary purpose Company providing for an annual base salary or payment in excess of which is the sale of any Products or Services to such Governmental Body$250,000;
(xvii) IP Contracts; or
(xvxviii) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xviii) above of this Section 3.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease listed in Section 3.11(b) of the Company Disclosure Letter, or would otherwise have been required to be set forth on Section 3.13(a) of the Company Disclosure Letter if such Contract had been entered into on or prior to the date hereof other than any Company Plan, is referred to herein as a “Company Material Contract.”
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all material amendments thereof and waivers thereunderthereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(ci) Except as would not, individually or in the aggregate, not reasonably be expected to be material to the Company and its Subsidiaries, Subsidiaries (taken as a whole), (i) neither the Company is not nor any of its Subsidiaries (and A) is, or has sent or received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no No party to any Company Material Contract has given any written noticenotice of termination, cancellation or breach of, or to the knowledge of the Companydispute with respect to, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate terminate, modify, renegotiate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 3 contracts
Sources: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Contracts and Commitments. (a) As of the date of this Agreement, none hereof and except as set forth in Section 4.14(a) of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiaries, taken as a whole, that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition, directly or indirectly (by merger, sale of stock, sale of assets, or otherwise), by the Company or any of its Subsidiaries of any material assets (other than cash) or any material equity interests in any Person (other than any Subsidiary of the Company), other than the sale of inventory in the ordinary course of business consistent with past practice, which contains any material ongoing financial obligations, indemnification, “earn-out” or milestone payments or other contingent payment that are still in effect that are reasonably likely to result in claims in excess of $3,000,000 after the date hereof or (B) pursuant to which the Company or any of its Subsidiaries will acquire or dispose of any equity interest in any other Person other than the Company’s Subsidiaries in excess of $3,000,000;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementU.S. jurisdictions);
(iv) any material partnership, joint venture, limited liability company agreement or similar Contract establishing relating to the formation, creation, operation, management or control of any joint ventures, partnerships, profit sharesco-development, material co-promotion, collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting in any material respect the right of the Company or any of its Subsidiaries (1) to compete in any line of business or (2) to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party party, or sell any product or service exclusively to a single party, or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product or service of the Company or its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(vi) Contract with each customer and supplier required to be listed on Section 4.23(a) of the Company Disclosure Letter;
(vii) any employment or consulting agreement with any current (A) executive officer of the Company or any of its Subsidiaries, (B) member of the Company Board, or (C) employee of the Company or any of its Subsidiaries, in each casecase earning an annual base salary or payment in excess of $150,000 (if performing services in the United States) or in excess of the local equivalent of $250,000 (if performing services outside the United States), other than those that are terminable by the Company or any such Subsidiary on without advance notice and without Liability to the Company and its Subsidiaries;
(viii) Contract that requires by its terms the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an exclusive basis amount having an expected value in excess of $10,000,000 in the current or any geographical areasubsequent fiscal year, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted which cannot be cancelled by the Company or any of its Subsidiaries, as applicable, without penalty or further payment without more than ninety (90) days’ notice (other than payments for services rendered to the date), excluding indebtedness and commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements entered into in the ordinary course of business, material transfer agreements, services agreements, clinical trial agreements and non-exclusive outbound licenses entered into in the ordinary course of business;
(ix) (A) any mortgages, indentures, guarantees, loans or credit agreements or other Contracts, in each case relating to outstanding indebtedness for borrowed money of the Company or any Subsidiary thereof having an aggregate principal (or committed amount) of $5,000,000 or more, other than intercompany indebtedness to or among the Company and its Subsidiaries or among any of its Subsidiaries or (EB) grants any rights Contracts governing the terms of first refusalthe Company Warrants, right other than those enumerated in the definitions of first offerCompany ▇▇▇▇ ▇▇▇▇▇▇▇ Confirmations or Company 2025 Warrant Confirmations;
(x) Contract under which the Company or any of its Subsidiaries are expected to make annual capital expenditures in excess of $20,000,000 during the current or subsequent fiscal year;
(xi) Contract under which the Company or any of its Subsidiaries are expected to receive annual revenues in excess of $10,000,000 during the current or subsequent fiscal year;
(xii) Settlement agreement, right or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of negotiation agreement with or similar right imposed by any Governmental Body, in each case that has existing or contingent material performance obligations;
(xiii) Contract of the Company or any of its Subsidiaries relating to acquire rights or ownership with respect to the settlement of any Action that provides for any continuing material assets or business Liabilities on the part of the Company or any of its Subsidiaries;, which will involve payments after the date hereof of consideration in excess of $5,000,000; or
(vixiv) Contract of the Company or any of its Subsidiaries that prohibits, materially limits or materially restricts the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or prohibits, materially limits or materially restricts the pledging of capital stock of the Company or any of its Subsidiaries. Each such Contract described in clauses (i) through (xiv) of this Section 4.14(a), together with each Company Real Property Lease, is referred to herein as a “Company Material Contract.”
(b) Parent has been given access to a true, correct and complete copy as of the date hereof of all written Company Material Contracts, together with all amendments, waivers or other changes thereto.
(c) Except as would not have a Company Material Adverse Effect: (i) none of the Company or any of its Subsidiaries (A) is, or has received written notice that any Third Party Component to any Company Material Contract is, in violation or breach of or default (Bwith or without notice or lapse of time or both) other Contract relating under any Company Material Contract, (ii) to the researchCompany’s Knowledge, testingthere has occurred no event giving to any Third Party any right of termination, developmentamendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contract and (iii) each such Company Material Contract is in full force and effect and is a legal, commercializationvalid and binding agreement of, manufacture or supply of any Product of and enforceable against, the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing Knowledge of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on each other party thereto, except as enforcement may be limited by the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Enforceability Exceptions. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as not have a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledgeAdverse Effect, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreementhereof, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Globus Medical Inc), Merger Agreement (Nuvasive Inc)
Contracts and Commitments. (a) As of the date of this AgreementOriginal Execution Date, none of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementOriginal Execution Date;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementOriginal Execution Date;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this AgreementOriginal Execution Date;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this AgreementOriginal Execution Date), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement Original Execution Date but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this AgreementOriginal Execution Date, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this AgreementOriginal Execution Date, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this AgreementOriginal Execution Date, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Akoya Biosciences, Inc.), Agreement and Plan of Merger (Quanterix Corp)
Contracts and Commitments. (a) As Set forth in the Company Disclosure Letter is a complete and accurate list of all of the date of this Agreementfollowing contracts (written or oral), none of plans, undertakings, commitments or agreements ("Company Contracts") to which the Company or any of its Subsidiaries is a party to or by which any of them is bound by anyas of the date of this Agreement:
(ia) “each distribution, supply, inventory purchase, franchise, license, sales, agency or advertising contract involving annual expenditures or liabilities in excess of $100,000 which is not cancelable (without material penalty, cost or other liability) within one year;
(b) each promissory note, loan, agreement, indenture, evidence of indebtedness or other instrument providing for the lending of money, whether as borrower, lender or guarantor, in excess of $100,000;
(c) each contract, lease, agreement, instrument or other arrangement containing any covenant limiting the freedom of the Company or any of its subsidiaries to engage in any line of business or compete with any person;
(d) each joint venture or partnership agreement that is material to the Company and its Subsidiaries taken as a whole; and
(e) any contract that would constitute a "material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect ). True and complete copies of the written Company Contracts, as amended to date, that would be required to be filed as exhibits 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 's Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of if such Form 10-K until were being filed on this date, that have not been filed prior to 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 hereof as exhibits to the acquisition SEC Reports have been delivered or disposition of made available to Parent. Each Company Contract is valid and binding on the Company, and any product line, business or material asset Subsidiary of the Company or any which is a party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect, and the Company and its Subsidiaries, in each case, Subsidiaries have performed and complied with all obligations remaining required to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint venturescompiled with by them under each Company Contract, 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, except 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, have or reasonably be expected to be material to the Company and its Subsidiaries, taken as have a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s 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)Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Robinson Nugent Inc), Merger Agreement (Minnesota Mining & Manufacturing Co)
Contracts and Commitments. (a) As DISCLOSURE SCHEDULE 2.16, CONTRACT COMMITMENTS, which is attached hereto, contains a complete list of each contract and commitment of the date of this AgreementSeller that is material to the operations, none assets, and business or financial condition of the Company or any that by its terms can reasonably be expected to require future payment by or to the Company of its Subsidiaries is a party $10,000 or more, including but not limited to or bound by anythe following:
(i) “material contract” All employment contracts and commitments between the Company and its employees, other than those terminable by the Company at will and without payment or penalty;
(as such term ii) All collective bargaining agreements and union contracts to which the Company is defined a party;
(iii) All contracts or commitments, written or oral, with distributors, brokers, manufacturer's representatives, sales representatives, service or warranty representatives, customers, and other persons, firms, or corporations engaged in Item 601(b)(10) of Regulation S-K the sale or distribution of the SECCompany's products or services;
(iv) with respect to All purchase orders issued by the Company in excess of $20,000, all sales orders received by the Seller in excess of $25,000 and all purchase or any of its Subsidiaries sales orders that was required to be, but has not been, filed with the SEC with the Company’s Annual Report call for delivery or performance on Form 10-K for the fiscal a date more than one year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until from the date of this Agreement;
(iiv) collective bargaining agreement All contracts and arrangements between the Company or Contract with any labor unionperson or entity that controls, trade organization, works council or other employee representative body, Contract with a third-party professional employer organizationis controlled by, or other Contract with is under common control with, the Seller or any other third party which cannot be terminated with thirty family member of any such person (30such entity or person, being hereinafter referred to as an "Affiliate");
(vi) days’ notice All contracts and arrangements, written or lessoral, under which the Company is either a bailor or any bailee including without limitation contracts for the bai▇▇▇▇▇ of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month periodAircraft;
(vii) Contract All agreements pursuant to which the Company acquired its Trade Name or any a substantial portion of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;assets; and
(viii) Contract pursuant to which All other contracts and commitments of the Company (excluding leases for the purpose of this Section 2.16(a)) and instruments reflecting obligations for borrowed money or for other indebtedness or guarantees thereof.
(b) At the Purchaser's request, the Seller shall deliver or cause to be delivered to the Purchaser full and complete copies of the documents identified above and all such other agreements and instruments as the Purchaser may reasonably request.
(c) The Seller is not a party to any written agreement that would restrict it from carrying on any line of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by business anywhere in the world.
(d) Each of the contracts listed on DISCLOSURE SCHEDULE 2.16 is valid and binding, and each of the contracts binding on the Company (whether or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ixnot listed on DISCLOSURE SCHEDULE 2.16) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), has been entered into in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness. To Seller's knowledge, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by neither the Company nor any other party hereto is in default under or any of its Subsidiaries of third-party obligations (under which in breach or violation of, and neither the Company or nor any of its Subsidiaries other party hereto has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company received notice of any asserted claim of its Subsidiaries’ obligations default by any other party under, or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contracta breach or violation of, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiariescontracts, on the one handagreements, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type commitments described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contractsthis Section 2.16, together including without limitation, any licensing or usage agreements with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material respect to the Company and its Subsidiaries, taken as a whole, (i) technology that the Company is not (now uses or currently intends and plans to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)use.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Limco-Piedmont Inc), Membership Interest Purchase Agreement (Tat Technologies LTD)
Contracts and Commitments. (a) As of the date 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 Except as expressly contemplated by this AgreementAgreement or as set forth in Schedule 7.10(a), none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K Contract for the fiscal year ended December 31employment of any officer, 2023individual employee or other Person or Contract relating to loans to officers, directors or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementAffiliates;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted advanced, loaned or extended credit to any other Person amounts that in the aggregate exceed Ten Thousand Dollars and 00/100 ($10,000.00);
(iii) Contract that provides for, or group of Persons relates to, the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted incurrence by the Company or any of its SubsidiariesSubsidiaries of debt for borrowed money, other Indebtedness or (E) grants any rights of first refusalthe mortgaging, right of first offer, right of negotiation pledging or similar right to acquire rights or ownership with respect to otherwise placing a Lien on any material asset or material group of assets or business of the Company or any of its Subsidiaries;
(viiv) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply that provides for a guarantee of any Product obligation of the Company any Person or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which provides that the Company or any of its Subsidiaries (A) licenses must assume or become liable for any Intellectual Property (other than commercially available off-the-shelf Software) from another Indebtedness of any Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viiiv) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as is lessee of the date of this Agreement)or holds or operates any property, real or personal, owned by any other than Person;
(Avi) any guaranty by Contract under which the Company of or any of its Subsidiaries’ obligations Subsidiaries is lessor of or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental permits any third party to the transaction contemplated in hold or operate any Contractproperty, the commercial purpose of which is primarily for something other than such indemnification obligationsreal or personal, and which indemnification obligations are not material to the business of owned or controlled by the Company or any of its Subsidiaries;
(xivii) Contract between the Companyassignment, on the one handlicense, and indemnification or agreement with respect to any Affiliate of the Company intangible property (other than a Subsidiary of the Companyincluding any Intellectual Property Rights), on the other hand;
(xiiviii) Company Real Property leasesales, distribution or franchise Contract;
(xiiiix) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company that is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than terminable by the Company or any of its Subsidiaries upon less than thirty (30) days notice without penalty and that involves consideration in excess of Twenty Five Thousand Dollars and 00/100 ($25,000.00) in any twelve (12) month period;
(x) Contract that prohibits the Company or any of its Subsidiaries from freely engaging in any business or competing anywhere in the world; or
(xi) any other Contract that is material to each the Company’s or any of its Subsidiaries’ operations or business prospects as currently contemplated.
(b) Each of the Contracts listed in Schedule 7.10(a) (collectively, the “Material Contracts”) constitutes a valid and binding obligation of the Company Material Contracts or, if applicable, one of its Subsidiaries and, to the Knowledge of the Company, of each other party thereto and is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid(except for those Material Contracts that by their terms will expire prior to the applicable Closing Date or are otherwise terminated prior to the applicable Closing Date in accordance with the provisions hereof) will continue in full force and effect after the Closings, binding in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder and enforceable against without the consent, approval or act of, or the making of any filing with, any other party. The Company and, if applicable, its Subsidiaries, have fulfilled and performed their material obligations under each Material Contract, and neither the Company and nor any of its Subsidiaries (is in, or alleged to be in, default under or breach of, nor is there or is there alleged to be any basis for termination of, any Material Contract, and to the extent Knowledge of the Company no other party thereto) andto any of the Material Contracts has breached or defaulted thereunder, and no event has occurred and no condition or state of facts exists that, with the passage of time or the giving of notice or both, would constitute such a default or breach by the Company, any of its Subsidiaries or, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge Knowledge of the Company, by any notice (whether such other party. Neither the Company nor any of its Subsidiaries has any present expectation or intention of not written) of termination or cancellation fully performing all its obligations under each Material Contract, and the Company does not have Knowledge of any Company anticipated breach by any other party to any Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Contract.
Appears in 2 contracts
Sources: Series D Preferred Stock Purchase Agreement (Xstream Systems Inc), Series D Preferred Stock Purchase Agreement (Xstream Systems Inc)
Contracts and Commitments. (a) As of the date of this Agreementhereof, none of the Company or any of its Subsidiaries Obalon is a not party to or nor bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company Obalon or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the CompanyObalon’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232019, or any Company Obalon SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementhereof;
(ii) Contract (A) relating to the disposition or acquisition by Obalon or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement other than in the ordinary course of business consistent with past practice or (2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in claims in excess of $100,000 or (B) pursuant to which Obalon or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Obalon’s Subsidiaries;
(iii) collective bargaining agreement or Contract with any labor union, trade organization, works council organization or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Obalon to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Obalon to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, party or (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Obalon on an exclusive basis to any Person or group of Persons or in any geographical areaarea but excluding any distribution, (D) containing any “most favored nations” sales representative, sales agent or similar preferential terms agreement under which Obalon has granted a Person an exclusive geographical area and conditions (including with respect under which Obalon paid commissions less than $100,000 to pricing) granted by the Company or any of its Subsidiariessuch Person in 2019, or (E) grants any rights from whom Obalon received less than $100,000 from the sale of first refusal, right of first offer, right of negotiation or similar right product to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariessaid Person in 2019;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company Obalon or any of its Subsidiaries (Ai) licenses any material Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property Person that is used by the Company Obalon or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Obalon or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (each, a “Company In-License”12) month period or (Bii) licenses any Obalon Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate)Person, except non-exclusive licenses that are granted provided to direct customers in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesbusiness;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ixvii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditcredit of $100,000 or more, other than (A) accounts receivables and payables; payables and (B) loans to direct or indirect wholly-owned Subsidiariessubsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000business consistent with past practice;
(xviii) Contract providing for any guaranty by the Company Obalon or any of its Subsidiaries of third-party obligations (under which the Company Obalon or any of its Subsidiaries has continuing obligations as of the date hereof) of this Agreement)$100,000 or more, other than (A) any guaranty by the Company of Obalon or any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xiix) Contract between the CompanyObalon, on the one hand, and any Affiliate of the Company Obalon (other than a Subsidiary of the CompanyObalon), on the other handhand (other than an Obalon Plan);
(xiix) Company Real Property leaseContract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Obalon or its Subsidiaries;
(xiiixi) Contract under which the Company Obalon and the CompanyObalon’s Subsidiaries made are expected to make annual expenditures or received receive annual revenues in excess of $500,000 100,000 during the 2024 current or a subsequent fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xvxii) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)foregoing.
(b) The Company ReShape has made available been given access to Parent a true and correct copy of all written Company Obalon Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Obalon Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as have a wholeMaterial Adverse Effect on Obalon, (i) the Company Obalon is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a4.12(a) of the Company Obalon Disclosure Letter Schedule (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a an “Company Obalon Material Contract” and, collectively, the “Company Obalon Material Contracts”) and ), and, (ii) to the CompanyObalon’s knowledge, as of the date of this Agreementhereof, the parties other than the Company or any of its Subsidiaries party to each of the Company Obalon Material Contracts is not in breach thereof or in default thereunder. Each Company Obalon Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) Obalon and, to the CompanyObalon’s knowledge, each other party thereto. As of the date of this Agreementhereof, no party to any Company Obalon Material Contract has given any written notice, or to the knowledge of the CompanyObalon, any notice (whether or not written) of termination or cancellation of any Company Obalon Material Contract or that it intends to seek to terminate or cancel any Company Obalon Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (ReShape Lifesciences Inc.), Merger Agreement (Obalon Therapeutics Inc)
Contracts and Commitments. (a) As of the date For purposes of this Agreement, none each of the following shall be deemed to constitute a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term any Company Contract that is defined in Item 601(b)(10) of Regulation S-K required by the rules and regulations of the SECSEC to be filed as an exhibit to the Company SEC Reports;
(ii) with any Company Contract relating to the employment of any employee, and any Contract pursuant to which the Company or any Company Subsidiary is or may become obligated to make any severance, termination, bonus or relocation payment or any other payment (other than payments in respect of salary) in excess of $125,000, to any current or former employee or director;
(iii) any Company Contract relating to the acquisition, transfer, development, sharing or license of any material Proprietary Asset (except for any Company Contract pursuant to which (A) any material Proprietary Asset is licensed to the Company or any of its Subsidiaries that was required under any third party software license generally available for sale to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023public, or (B) any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with material Proprietary Asset is licensed by any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person on a non-exclusive basis);
(iv) any Company Contract which provides for indemnification of any officer, director or employee;
(v) any Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(vi) any Company Contract that involves the payment or expenditure of $750,000 that may not be terminated by the Company (or its Subsidiary, as the case may be) (without penalty) within 60 days after the delivery of a termination notice by the Company (or its Subsidiary, as the case may be);
(vii) any Company Contract contemplating or involving (A) the payment or delivery of cash or other consideration in any geographical areaan amount or having a value in excess of $750,000 in the aggregate, or (B) obligating the performance of services having a value in excess of $750,000 in the aggregate; or
(viii) any Company or Contract imposing any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons restriction on the right to manufacture, sell, market or distribute any Product ability of the Company or any of its SubsidiariesCompany Subsidiary to (A) compete with any other Person, in each case(B) acquire any material product or other material asset or any services from any other Person, on an exclusive basis sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any geographical area, (D) containing other manner with any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiariesother Person, or (EC) grants any rights of first refusal, right of first offer, right of negotiation develop or similar right to acquire rights or ownership with respect to distribute any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreementtechnology;
(ix) mortgagesany Company Contract involving interest rate swaps, indenturescaps, guarantees, loans floors or credit agreements, security option agreements or any other Contracts relating to the borrowing of money interest rate risk management arrangement or extension of credit, other than (A) accounts receivables and payablesforeign exchange contract; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;and
(x) Contract providing for any guaranty by the other Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose if a breach of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material Company Contract could reasonably be expected to the business of the have a Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)Material Adverse Effect.
(b) The Company has made available to Parent a true and correct copy of all written Each Company Material Contracts, together with any Contract is valid and all amendments thereof in full force and waivers thereundereffect, and a correct and complete written summary setting forth is enforceable in accordance with its terms.
(c) Neither the terms and conditions of each oral Company nor any Company Subsidiary has violated or materially breached, or committed any default under, any Company Material Contract. To the Company’s knowledge, no other Person has materially violated or breached, or committed any default under, any Company Material Contract.
(cd) Except as would notNo event has occurred, individually and no circumstance or in the aggregatecondition exists, that (with or without notice or lapse of time) could reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) result in a violation or breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) provision of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, ; (ii) give any Person the “right to declare a default or exercise any remedy under any Company Material Contracts”) and Contract; (iiiii) to the Company’s knowledge, as give any Person the right to receive or require a material rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Company Material Contract; or (v) give any Person the right to cancel, terminate or modify any Company Material Contract.
(e) Neither the Company nor any Company Subsidiary is party to a Government Contract and none of them has submitted a Government Bid.
(f) Schedule 4.14 of the date Company Disclosure Statement provides a list of this Agreementall Company Material Contracts (including all amendments thereto) not otherwise included in the Company SEC Reports. The Company has provided or made available to Buyer a copy of each Company Material Contract (including all amendments thereto) listed in Schedule 4.14 (f) of the Company Disclosure Statement, the parties other than Company Material Contracts filed as Exhibits to the Company or any SEC Reports and all copies of its Subsidiaries all amendments to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against filed as exhibits to the Company and its Subsidiaries (SEC Reports, to the extent party thereto) and, to such amendments have not been filed with the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)SEC.
Appears in 2 contracts
Sources: Merger Agreement (Spectrian Corp /Ca/), Merger Agreement (Spectrian Corp /Ca/)
Contracts and Commitments. Except as set forth in Schedule 2.18, with respect to subsections (a) As of through (k) below, or as set forth in the date of this AgreementMSGI Financial Statements, none of the Company or any of its Subsidiaries is a party to or bound by anyMSGI:
(a) does not have any contract, arrangement or commitment which is material to its business, operation or prospects (for the purpose of this subsection, any contract, or arrangement or commitment shall be deemed "material" if it calls for fixed and/or contingent payments thereunder of more than $25,000 in the aggregate) except those which (i) “material contract” are cancelable by MSGI on notice of not longer than thirty (as such term is defined 30) days an without liability, penalty or premium or (ii) are excepted fro disclosure pursuant to other sections in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(iib) collective bargaining agreement does not have any contract, arrangement or Contract commitment which may result in a loss exceeding $25,000;
(c) does not have any contract, arrangement or commitment with any labor uniondirector, trade organizationofficer, works council employee, agent, consultant, advisor, salesman or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which canproviding for future compensation of more than $25,000 that is not be terminated with cancelable by it on notice of not longer than thirty (30) days’ notice days and without liability, penalty or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employeespremium;
(iiid) Contract relating to the acquisition does not have any employment agreement with any officer, employee or disposition of agent, nor any product line, business agreement that contains any severance or material asset of the Company termination pay liabilities or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreementobligations;
(ive) Contract establishing does not have any joint ventures, partnerships, profit shares, material collaborations collective bargaining or similar arrangementsunion contracts or agreements;
(vf) Contract is not in Default of or in material breach or violation of, nor is there any basis known to MSGI for any valid claim therefor, under any contract, arrangement or commitment of MSGI involving more than $25,000;
(Ag) prohibiting or materially limiting the right of the Company does not have any agreement restricting it from carrying on its business or any of its Subsidiaries to compete part thereof anywhere in the world or from competing in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesperson;
(vih) (A) Third Party Component Contract does not have any debt obligation for borrowed money, including guarantees of or (B) other Contract relating agreements to the research, testing, development, commercialization, manufacture or supply acquire any such debt obligation of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month periodothers;
(viii) Contract pursuant does not have any outstanding loans to which the Company or any person and advances to directors, officers and employees of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its MSGI for business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted expenses in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesexceeding $10,000 in the aggregate;
(viiij) Contract pursuant to which the Company does not have any obligation or any of its Subsidiaries has any continuing obligation to make any milestone liability as guarantor, surety, co-signer, endorser, co-maker, indemnitor or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries otherwise in the aggregate over the term respect of the Contract from and after obligation of any other person including MSGI; or (k) does not have any irrevocable power of attorney to, or appointed as agent for service of process, any person except any agent for service of process in foreign jurisdictions, the date qualification of which is necessary to comply with the provisions of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (Medcare Technologies Inc), Merger Agreement (Medcare Technologies Inc)
Contracts and Commitments. 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 Section 3.13 of the Disclosure Schedule sets forth, as of the date of this Agreementhereof, 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 beeach contract and other agreement, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(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 Company Subsidiary is a party that:
(Ai) 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 provides for aggregate future payments by the Company or any Company Subsidiary, or to the Company or any Company Subsidiary, of its Subsidiaries to another Person more than $500,000 and has an unexpired term exceeding one year and may not be canceled upon sixty (other than an Affiliate)60) days' notice without any liability, except non-exclusive licenses that are granted penalty or premium (excluding purchase orders, invoices and leasing transactions entered into or incurred in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiariesbusiness);
(viiiii) Contract pursuant to which was entered into by the Company or a Company Subsidiary with a shareholder, officer, director or significant employee of the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” Company Subsidiary;
(iii) is a collective bargaining or similar contingent agreement;
(iv) involves an agreement with any bank, finance company or deferred payments potentially payable by similar organization for Indebtedness of the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this AgreementCompany Subsidiary;
(ixv) mortgagesmaterially restricts the Company or any Company Subsidiary from engaging in any line of business anywhere in the world; and
(vi) is an employment agreement, indenturesconsulting agreement or similar arrangement.
(b) As of the date hereof, guarantees(i) there is not and, loans to the Knowledge of the Company, there has not been claimed or credit agreementsalleged by any Person with respect to any contract listed in Section 3.13 of the Disclosure Schedule any existing default or event that, security agreements with notice or lapse of time or both, would constitute a default or event of default on the part of the Company or any Company Subsidiary or, to the Knowledge of the Company, on the part of any other party thereto, except such defaults, events of default and other events that would not reasonably be expected to result in a Company Material Adverse Effect, and (ii) no consent, approval, authorization or waiver from, or notice to, any Governmental Entity or other Contracts relating Person is required in order to maintain in full force and effect any of the borrowing contracts listed in Section 3.13 of money or extension of creditthe Disclosure Schedule, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof consents and waivers thereunder, that have been obtained and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal are unconditional and in full force and effect and is validsuch notices that have been duly given and (B) such consents, binding and enforceable against approvals, authorizations, waivers or notices the Company and its Subsidiaries (failure of which to the extent party thereto) and, have or give would not reasonably be expected 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 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 2 contracts
Sources: Merger Agreement (Headwaters Inc), Merger Agreement (Headwaters Inc)
Contracts and Commitments. (a) As Schedule 4.12 sets forth an accurate and complete list of each Contract of the Company in effect as of the date of this Agreement to which the Company is a party or which affects the Company or its assets, (i) with a dealer, broker, sales agency, advertising agency or other Person engaged in sales or promotional activities, (ii) which requires aggregate payments by or to the Company, or involves an unperformed commitment or service, having a value in excess of Twenty-Five Thousand Dollars ($25,000), (iii) pursuant to which the Company has made or will make loans or advances, or has or will incur debts or become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another, (iv) which is an indenture, credit agreement, loan agreement, note, mortgage, security agreement, lease of real property or personal property or agreement for financing, (v) involving a partnership, joint venture or other cooperative undertaking, (vi) involving material restrictions relating to any business conducted or proposed to be conducted by the Company, (vii) which is a power of attorney or agency agreement or written arrangement with any Person pursuant to which such Person is granted the authority to act for or on behalf of the Company, (viii) with respect to which the requirements for performance extend beyond one (1) year from the date of this Agreement, none of the Company or any of its Subsidiaries is a party to or bound by any:
(iix) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) which contains warranties with respect to products manufactured and/or sold or services rendered by the Company other than those warranties expressly made in the literature accompanying such products, (x) which is a consulting or any of its Subsidiaries that was required to beprofessional advisor agreement, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(iixi) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty without penalty or payment or on at least ninety (3090) days’ notice or less' notice, under which the Company or (xii) with any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its SubsidiariesCompany's Affiliates, or (Exiii) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to be performed at or after the business date of this Agreement (the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv"Material Contracts").
(b) Except as set forth on Schedule 4.12, to the knowledge of the Company or Seller, no Material Contract has been materially breached or cancelled by the other party, and neither the Company nor Seller has knowledge of any anticipated material breach by any other party to any Material Contract. The Company and Seller have performed all the material obligations required to be performed by them in connection with each Material Contract and are not in material default under or in breach of any Material Contract, and no event has occurred which with the passage of time or the giving of notice or both would result in a material default or breach thereunder. Neither the Company nor Seller has a present expectation or intention of not fully performing any material obligation pursuant to any Material Contract. Each Material Contract is legal, valid, binding, enforceable and in full force and effect. Except as set forth on Schedule 4.12, to the knowledge of Seller and the Company, no Material Contract obligates the Company to process, manufacture or deliver products or perform services that shall result in a loss upon completion of performance.
(c) Seller has made available all Material Contracts disclosed pursuant to Parent Section 4.12(a)(ii), which have a value of less than One Hundred Thousand Dollars ($100,000) and has provided Buyer with a true and correct copy of all other written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or Contracts that are required to be listeddisclosed on Schedule 4.12, in Section 3.12(a) and has furnished to Buyer all amendments, waivers or any material changes thereto (all of which are disclosed on Schedule 4.12). Schedule 4.12 contains an accurate and correct description of all material terms of all oral Material Contracts. Except as set forth on Schedule 4.12, no consent is required, and no change of control provisions are triggered, with respect to any of the Company Disclosure Letter (eachMaterial Contracts in connection with the execution, together with any Contract entered into after the date delivery and performance of this Agreement but would be required to be set forth on Section 3.12(a) of and the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result consummation of the transactions contemplated hereby hereby.
(d) Schedule 4.12 sets forth a list of each location where the Company leases real property, the applicable lease agreement, whether the Company still occupies the property, the status of past due obligations under the lease and a summary of any litigation threatened or otherwise)commenced by the landlord. Schedule 4.12 lists each lease for real property terminated by the landlord in the last twelve months and the status of any past due obligations under such leases and a summary of any related litigation.
Appears in 1 contract
Sources: Purchase Agreement (Computer Network Technology Corp)
Contracts and Commitments. (a) As of the date of this Agreement, none Section 3.09(a) of the Company or Disclosure Schedules, sets forth a complete and accurate list of each of the following Contracts to which any of its Subsidiaries Group Company is a party or otherwise bound (any Contract of a nature described below to which any Group Company is a party or bound by any:otherwise bound, being referred to herein as a “Material Contract” and, collectively, as the “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, 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 creditcredit or to mortgaging, pledging or otherwise placing a Lien (other than (APermitted Liens) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case on any asset 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 $50,000any Group Company;
(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 (Aii) any guaranty by the Company of any obligation for borrowed money or Contract containing any other material performance guaranty or any Contract entered into outside of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental contains an indemnification obligation which is material to the transaction contemplated Group Companies, taken as a whole;
(iii) any Real Property Lease;
(iv) any Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000 (excluding the Real Property Leases);
(v) any Contract or group of related Contracts with the same party for the purchase of products or services that provide for annual payments by a Group Company in excess of $100,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet or any remaining twelve (12) month period during the term of such Contract;
(vi) any Contract or commitment relating to capital expenditures and involving future payments in excess of $100,000;
(vii) any Contract or commitment relating to the disposition or acquisition of any interest in any Contract, business enterprise outside of the commercial purpose ordinary course of which is primarily for something business consistent with past practice;
(viii) any Contract or group of related Contracts with a customer that provides annual net revenues (based on the trailing twelve (12) month period ending on the date of the Latest Balance Sheet) to the Group Companies in excess of $100,000;
(ix) any Contract (other than such indemnification obligationsany Contract for Standard Software) under which (A) any Group Company acquired ownership of any Owned Intellectual Property, and which indemnification obligations are not (B) any Group Company has granted to any Person a license or other rights to use any Owned Intellectual Property or Licensed Intellectual Property (other than non-exclusive licenses entered into in the context of ordinary course distribution agreements), (C) any Group Company has been granted by any Person a license or other rights to use any Licensed Intellectual Property or (D) any Group Company pays royalties to any Person for the right to use any Intellectual Property that is material to the business of the Group Companies, as currently conducted or as contemplated to be conducted;
(x) any Contract limiting in any respect the right of any Group Company to engage or participate, or compete with any Person, in any line of business, market or geographic area, or any Contract granting most favored nation pricing, exclusive sales, manufacturing, distribution, marketing or other exclusive rights, rights of its Subsidiariesfirst refusal, rights of first negotiation or options to any Person;
(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 handcollective bargaining Contract;
(xii) Company Real Property leaseany employment or contractor Contract (other than employment or contractor arrangements involving annual compensation by any of the Group Companies of less than $100,000);
(xiii) any Contract under which the Company and the Company’s Subsidiaries made annual expenditures that contains any redundancy, severance or received annual revenues in excess of $500,000 during the 2024 fiscal yeartermination pay or creates post-employment Liabilities (other than as required by applicable Law);
(xiv) any fidelity or surety bond or completion bond;
(xv) any partnership, joint marketing, joint venture Contract, strategic alliance, development 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 Contract which is the sale or contains a power of attorney given by any Products Group Company;
(xvi) any sales representative, original equipment manufacturer, manufacturing, reseller or Services to such Governmental Bodydistribution Contract involving aggregate payments in excess of $100,000; or
(xvxvii) Contract any settlement agreement or covenant not 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. Each Material Contract is valid and binding on each Group Company that is a party thereto, together as applicable, and, to the knowledge of the Company, on each other Person that is a party to such Material Contract and each Material Contract is in full force and effect, subject to the Enforceability Exceptions. Without limiting the foregoing, the Company has made available to Parent (or its legal counsel) all material written correspondence and communication between the Company and the counterparty (and/or its successor entity) to the Contract referenced in Schedule 8.02(j) (or their respective legal counsel) with any and all amendments thereof and waivers thereunder, and respect to the consent given by such counterparty (and/or its successor entity) under such Contract in connection with a correct and complete written summary setting forth financing transaction completed by one or more of the terms and conditions of each oral Company Material ContractGroup Companies.
(c) Except as would not, individually No Group Company has violated 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 listedbreached, or required to be listedcommitted any default under, 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 knowledge of the date of this AgreementCompany, no party to other Person has violated or breached, or committed any Company material default under, any Material Contract and no event has given occurred or condition exists that with the lapse of time or the giving of notice (or both) that will result in a violation or breach of any written noticeof the provisions of any Material Contract. There are no pending, or to the knowledge of the Company, threatened disputes with respect to any Material Contract. Since January 1, 2008, no Group Company has received any written notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate is has materially violated or cancel breached, or committed any Company material default under, any Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Contract.
Appears in 1 contract
Sources: Merger Agreement (Fluidigm Corp)
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 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 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 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 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 Section 4.12 of the Company Disclosure Letter identifies each Contract that constitutes a Company Material Contract as of the date of this Agreement. For purposes of this Agreement, none each of the following shall be deemed a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term is defined in Item 601(b)(10601 (b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiary that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this AgreementK;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty U.S. jurisdictions) (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees“Labor Agreements”);
(iii) Contract establishing or relating to the acquisition formation, creation, operation, management or disposition control of any product linejoint venture, business partnership, collaboration or material asset of the Company or any of its Subsidiariessimilar arrangement, in each case, with obligations remaining that is reasonably likely to be performed or Liabilities continuing after the date result in payments in excess of this Agreement$500,000;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services with a value in excess of $250,000, or to sell any material product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the (1) exclusive right to develop, manufacture, sell, market or distribute the Product, or (2) non-exclusive right to develop, manufacture, sell, market or distribute the Product (excluding, solely for subclause (C)(2), any Product Routine Services Contracts entered into in the ordinary course of business), (D) provides for “exclusivity” or any similar requirement in favor of any Person or group of Persons or in any geographical area or (E) requiring the Company or any of its SubsidiariesAffiliates (including, in each casefollowing the Closing, Parent or any of its Affiliates) to conduct any business on an exclusive basis in any geographical area, (D) containing any a “most favored nations” basis with any Person;
(v) Contract in respect of Indebtedness of $100,000 or similar preferential terms and conditions (including with respect to pricing) granted more, or any loan by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesother Person;
(vi) Contract (Aother than a Company Plan) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of between the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the CompanySubsidiary, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities;
(viii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets;
(ix) Contract that contains any standstill or similar agreement pursuant to which the Company or its Subsidiary has agreed not to acquire assets or securities of another Person, except for any Contract that is a nondisclosure agreement entered in connection with discussions, negotiations and transactions related to this Agreement or other Acquisition Proposal;
(x) (A) Contract and (B) open purchase order entered into in the last 12 months prior to the date of the Agreement, in each case, for payments that remain or may become due of $500,000 or more (such Contracts and purchase orders, or work orders, change orders or master services agreements relating to the same, the “Purchase Orders”) other than, in each case, a Company Plan;
(xi) Corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with Governmental Bodies that have existing or contingent performance obligations;
(xii) Contract of the Company Real Property leaseor its Subsidiary relating to the settlement, conciliation or similar agreement with any Governmental Body or Person that provides for payments in excess of $250,000, or that provides for any continuing material obligations on the part of the Company or its Subsidiary;
(xiii) Contract under which of the Company and or its Subsidiary that prohibit, limit or restrict the Company’s Subsidiaries made annual expenditures payment of dividends or received annual revenues distributions in excess respect of $500,000 during the 2024 fiscal yearCompany Securities, or otherwise prohibit, limit or restrict the pledging of Company Securities, or prohibit, limit or restrict the issuance of guarantees by the Company or its Subsidiary other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiv) stockholders’, investors rights’, registration rights or similar Contract between (excluding Contracts governing Company Stock Options or Company RSUs);
(xv) Contract (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company or its Subsidiary leases or subleases any real property;
(xvi) Contract with or binding upon the Company, its Subsidiary or any of its respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xvii) IP Contract;
(xviii) Contract with any academic institution, research center or Governmental Body (excluding any Routine Services Contracts entered into in the ordinary course of business) that relates to any Owned Intellectual Property or any other material Company Intellectual Property (or the research or development of any of the Company’s Subsidiariesforegoing or the funding for such research or development activities);
(xix) Contract with respect to commercialization, on the one handmanufacturing, and any Governmental Bodycollaboration, on the other handco-promotion, other than discovery, development or profit sharing (including any such Contracts with any third-party payor or any third party contract research organization that directly conducts clinical trials and excluding any such Contracts that do not contemplate any of (i) the primary purpose of which is the sale assignment of any Products Intellectual Property by the Company to any other Person, (ii) royalties or Services other revenue or profit sharing arrangements or (iii) the transfer or licensing of Company Intellectual Property other than non-exclusive licenses incidental to the performance of services under such Governmental Body; orContract);
(xvxx) Contract pursuant to which the Company or its Subsidiary has continuing guarantee, “earn-out” or similar contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or its Subsidiary, in each case, that could result in payments in excess of $500,000;
(xxi) Contract that obligates the Company or its Subsidiary to make any capital commitment or capital expenditure in an amount in excess of $500,000;
(xxii) Contract or offer letter that is for the employment of any directors, officers or employees at annual base salary in excess of $250,000;
(xxiii) Contract with any independent contractor or consultant involving annual payments in excess of $150,000; and
(xxiv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv)foregoing.
(b) The Company has made available to Parent a A true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and material amendments, waivers thereunderor other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material ContractContract has been made available to Parent.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the not have a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect, (i) neither the Company is not nor its Subsidiary (and A) is, or has received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under and (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contracts is not Contract (excluding expiration of any Contract in breach thereof or in default thereunder. Each accordance with its terms) and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or its Subsidiaries (to the extent party thereto) Subsidiary, as applicable, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) As of the date of this Agreementhereof, none of the Company or is not, nor is any of its Subsidiaries is Subsidiary, a party to or bound by anyany oral or written contract:
(i) “which is a "material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act) to be performed in full or in part after the date of this Agreement that has not been filed or incorporated by reference in the Company Reports;
(ii) that is a partnership, joint venture, strategic alliance or cooperation agreement (or any agreement similar to any of the SECforegoing), in each case which is material to the Company and its Subsidiaries taken as a whole;
(iii) with respect to that prohibits the Company or any of its Subsidiaries that was required to be, but has not been, filed with from freely engaging or competing in any line of business anywhere in the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementworld;
(iiiv) collective bargaining agreement between the Company and any of its Affiliates (other than Subsidiaries), directors or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which canofficers that is not be terminated with thirty on arms length terms;
(30v) days’ notice or less, under pursuant to which the Company or any of Subsidiary licenses (as licensor or licensee) any cotton or soybean hybrids or any germplasm or any other Intellectual Property related to cotton or soybeans, in each case which is material to the Company and its Subsidiaries obtains taken as a whole, except in each case any of the services of temporary or leased employees;
(iii) Contract relating foregoing which is licensed to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after Subsidiary by the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company Parent or any of its Subsidiaries Affiliates;
(vi) that involves an amount in excess of $1,500,000 and pursuant to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person incurred or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of accrued losses;
(vii) that by its Subsidiaries, terms may be terminated upon a change in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business control of the Company or any of its Subsidiaries;
(viviii) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which that commits the Company or any of its Subsidiaries to purchase or sell any properties or assets outside of the ordinary course of business for consideration in excess of $1,500,000; or
(Aix) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Personthat involves an unfulfilled obligation, which Intellectual Property is used by the Company individually or one of its Subsidiaries in the conduct aggregate, in excess of its $1,500,000 and is incurred outside the ordinary course of business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed and is not terminable by the Company or any of its Subsidiaries to another Person (other upon less than an Affiliate), except non-exclusive licenses that are granted in the ordinary course 120 calendar days' notice for a cost of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant not less than $1,500,000. The foregoing contracts and agreements to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone Subsidiary are parties or royalty or other “earnout” or similar contingent or deferred payments potentially payable by are bound and that are listed in the Company or Disclosure Letter, together with all contracts and agreements filed as exhibits to the Company Reports, are collectively referred to herein as the "Company Material Contracts."
(i) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgagesthat is a party thereto, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligationsapplicable, and which indemnification obligations are not material in full force and effect, except where the failure to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Companybe valid, on the one hand, binding and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company in full force and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as effect would not, individually or in the aggregate, reasonably be expected to be material to have a Material Adverse Effect, (ii) the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any each of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) has and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, all other parties thereto have, performed all obligations required to be performed by such Person under each Company Material Contract, except where such noncompliance would not, individually or in the aggregate, have a Material Adverse Effect, and (iii) neither the Company nor any of its Subsidiaries knows of, or has received written notice (whether of, the existence of any event or not written) condition which constitutes, or, after notice or lapse of termination time or cancellation both, will constitute, a default on the part of the Company, any of its Subsidiaries or any other party thereto under any Company Material Contract Contract, except where such default would not, individually or that it intends to seek to terminate or cancel any Company in the aggregate, have a Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) As of Except as 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 of Except for such contracts, agreements or ------------------------- commitments which are set forth on Schedule 2.19 attached hereto, neither the date of this Agreement, none of the ------------- Company or nor any of its Subsidiaries is a party to or bound by anyby:
(ia) “material any contract” , agreement or commitment which involves payment by the Company or its Subsidiaries, or might result in payments to the Company or its Subsidiaries, of $1,000,000 or more in the aggregate in any twelve month period;
(as such term is defined b) any agreement or indemnification or guarantee not entered into in Item 601(b)(10) the ordinary course of Regulation S-K of the SEC) with respect to business, other than indemnification agreements between 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, and any of their respective officers or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementdirectors;
(iic) collective bargaining agreement any agreement, contract 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 commitment limiting the right freedom of the Company or any of its Subsidiaries to compete engage in any line of business or to conduct business compete or deal with any Person person or in any geographical areageographic area (including, (Bbut not limited to, any noncompetition or exclusivity provisions) obligating or which would so limit the Company or any of its Subsidiaries after each Closing;
(d) any agreement, contract or commitment relating to purchase or otherwise obtain capital expenditures and involving future obligations in excess of $1,000,000 in the aggregate in any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which twelve month period for the Company and its Subsidiaries and not cancelable without penalty;
(e) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business 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 ownership interest in any geographical areacorporation, partnership, joint venture or other business enterprise;
(Df) containing any “most favored nations” mortgages, indentures, loans or similar preferential terms and conditions (including with respect credit agreements, security agreements or other agreements or instruments relating to pricing) granted by the Company or any borrowing of its Subsidiariesmoney, extension of credit, or (E) grants the placing of a Lien on 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 asset of the Company or any of its Subsidiaries;
(vig) any joint marketing or development agreement;
(Ah) Third Party Component Contract or any distribution agreement (Bidentifying any that contain exclusivity provisions) other Contract relating that involves payment to the researchCompany or its Subsidiaries of $1,000,000 or more in the aggregate in any twelve month period;
(i) any stock redemption or stock purchase agreement;
(j) any agreement with a customer, testingvendor or supplier involving payment by the Company or its Subsidiaries of $1,000,000 or more in the aggregate in any twelve month period;
(k) any lease of personal property providing for annual rentals of $1,000,000 or more in the aggregate in any twelve month period;
(l) any material option, developmentlicense, commercializationfranchise or similar agreement, manufacture including agreements with municipalities regarding license or supply franchise fees;
(m) any IRU, interconnection, co-location or fiber agreements involving payment by the Company or its Subsidiaries of $1,000,000 or more in the aggregate in any Product twelve month period; or
(n) any material agency, dealer, sales representative, marketing or other similar agreement. The Company has made available to the Purchaser a written copy all other contracts, agreements or commitments by which the Company or any of its Subsidiaries is a party or is bound that are otherwise material. Each Company Contract (as defined below) is a valid and binding agreement of the Company or a Subsidiary, as the case may be, and is in full force and effect. True and complete copies of each Company Contract have been delivered to the Purchaser (or made available to the Purchaser in connection with the purchase of the Series A Preferred Stock). None 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 's knowledge, each any other party thereto. As to a Company Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the date material terms or conditions of any of the agreements, contracts or commitments described in this AgreementSection 2.19 (any such agreement, no contract or commitment, including those described in the second preceding paragraph, a "Company Contract") in such manner as would permit any other party to cancel or terminate any such Company Material Contract has given any written noticeContract, or to the knowledge of the Company, would permit any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends other party to seek to terminate or cancel any Company damages, which action would have a Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Adverse Effect.
Appears in 1 contract
Sources: Series B Preferred Stock Purchase Agreement (Bti Telecom Corp)
Contracts and Commitments. (a) As Except as set forth in Section 3.5(a) of the date of this AgreementDisclosure Schedule, none of the neither Company or nor any of its Subsidiaries Subsidiary is a party to or bound by any:
by: (i) “material contract” (as such term is defined any agreement, contract or commitment requiring the expenditure or series of related expenditures of funds in Item 601(b)(10) excess of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property 25,000 (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted purchase orders in the ordinary course of business to service providersfor materials necessary for the Companies and the Subsidiaries); (ii) any agreement, contract manufacturing organizations or customers commitment requiring the payment for goods or services whether or not such goods or services are actually provided or the provision of goods or services at a price less than cost to the Companies and the Subsidiaries of producing such goods or providing such services; (iii) any loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of any such loan, advance or investment; (iv) any agreement or obligation with any Shareholder or any Affiliate of either Company or any Subsidiary; (v) any Debt Obligations; (vi) any labor union, management service, employment, consulting or other similar type contract or agreement; (vii) any agreement, contract or commitment that would limit the freedom of its Subsidiaries;
Weat▇▇▇▇▇▇▇ ▇▇ any Affiliate thereof following the Closing Date to engage in any line of business, to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of the assets of the Companies and the Subsidiaries or to compete with any Person or to engage in any business or activity in any geographic area; (viii) Contract pursuant to which the Company any agreement, lease, contract or any commitment or series of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit related agreements, security agreements leases, contracts or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does commitments not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made entered into in the ordinary course of business or, except for agreements to purchase or sell goods and that are merely incidental to services entered into in the transaction contemplated in any Contract, the commercial purpose ordinary course of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company Companies and the Subsidiaries, not cancelable by the Companies and the Subsidiaries, without penalty to the Companies and the Subsidiaries, within 30 calendar days; (ix) any agreement or contract obligating the Companies and the Subsidiaries or that would obligate or require any subsequent owner of its the Companies and the Subsidiaries to provide for indemnification or contribution with respect to any matter; (x) any sales, distributorship, agency or similar agreement relating to the products sold or services provided by the Companies and the Subsidiaries;
; (xi) Contract between the Companyany license, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
royalty or similar agreement; or (xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures any other agreement, contract or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, commitment that might reasonably be expected to be material to the Companies and the Subsidiaries or their business.
(b) Neither Company and its Subsidiaries, taken as a whole, (i) the Company nor any Subsidiary is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listedprovision of, or required to be listedin default (and the Shareholders have no knowledge of any event or circumstance that with notice, or lapse of time or both, would constitute an event of default) under, the terms of any of the contracts or agreements listed in Section 3.12(a3.5(a) of the Company Disclosure Letter (each, together with any Contract entered into after Schedule. All of the date of this Agreement but would be required to be contracts and agreements set forth on in Section 3.12(a3.5(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and Schedule are in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (effect. The Shareholders are not aware of any pending or threatened disputes with respect to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As any of the date contracts or agreements set forth in Section 3.5(a) of the Disclosure Schedule.
(c) The enforceability of the contracts and agreements set forth in Section 3.5(a) of the Disclosure Schedule will not be affected in any material respect by the execution and delivery of this Agreement, no party to any Company Material Contract has given any written notice, Agreement or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result consummation of the transactions contemplated hereby hereby.
(d) Except for the Nels▇▇ ▇▇▇e and intercompany indebtedness, neither Company nor any Subsidiary is indebted to any Shareholder or otherwise)any Affiliate of any Shareholder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Weatherford International Inc /New/)
Contracts and Commitments. (a) As of the date of this 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 as set forth on Schedule 2.12(a) of the date of this AgreementSeller Disclosure Schedule, none of the Company or any of its Subsidiaries is not a party to or bound by anyany of the following:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation Sany Contract that provides for post-K employment or post-consulting liabilities or obligations on the part of the SEC) with respect to the Company or any of its Subsidiaries that was required to beCompany, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementincluding severance pay;
(ii) collective bargaining agreement any Contract or Contract with any labor unionCompany Employee Benefit Plan under which payments or obligations will be increased, trade organization, works council accelerated or other employee representative body, Contract with a third-party professional employer organization, vested by the occurrence (whether alone or other Contract in conjunction with any other third party which cannot be terminated with thirty (30event) days’ notice of any of the transactions contemplated by this Agreement or less, under which the Company value of the payments or obligations will be calculated on the basis of any of its Subsidiaries obtains the services of temporary transactions contemplated by this Agreement, whether pursuant to a change in control or leased employeesotherwise;
(iii) any Contract currently in force relating to the disposition or acquisition or disposition of any product line, business or material asset assets where the fair market value of the Company or any of its Subsidiariessuch assets exceeds $10,000, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Personinventory, which Intellectual Property is used by the Company products or one of its Subsidiaries in the conduct of its business as currently conducted (eachservices sold, a “Company In-License”) licensed 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 provided in the ordinary course of business and that are merely incidental to consistent with past practice;
(iv) any Contract under which the transaction contemplated Company has an ownership interest in any Contractcorporation, partnership, joint venture or other business enterprise or Person;
(v) any Contract for the commercial purpose purchase of materials, supplies, equipment or services, under which the aggregate payments made to one party or group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is primarily expected to exceed, $10,000, in each case other than inventory, products or services sold, licensed or provided in the ordinary course of business and consistent with past practice;
(vi) any Contract for something the licensing of Software or for the provision of hardware or services, in each case by the Company as licensor or service provider, other than such indemnification obligations, and Contracts entered into in the ordinary course of business in which indemnification obligations are not material the fees to the business Company do not exceed $10,000;
(vii) any Contract under which the Company acts as a guarantor of (A) the performance of any other Person (other than the Company) or (B) the whole or any part of the indebtedness or liabilities of any other Person (other than the Company);
(viii) any Contract under which the Company agrees to indemnification of its officers, directors, managers or agents;
(ix) any Contract containing an obligation of the Company or to indemnify any Person in an amount that exceeds the cash consideration actually received by the Company pursuant to such Contract;
(x) any power of its Subsidiariesattorney authorizing the incurrence of an obligation on the part of the Company;
(xi) any Contract between which limits or restricts (A) where the Company may conduct business, (B) the type or lines of business (current or future) in which the Company may engage or (C) any acquisition of assets or stock (tangible or intangible) by the Company, 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 leaseany Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $10,000;
(xiii) any Contract under which for the borrowing or lending of money, or the availability of credit (except credit extended by an the Company to customers in the ordinary course of business and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal yearconsistent with past practice);
(xiv) any Contract relating to any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency;
(xv) any collective bargaining agreements; or
(xvi) any Contract which is an employment Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Bodyindividuals, 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 excluding “at will” employment agreements. Each Contract of the type described in this Section 2.12(a) and in existence as of the foregoing clauses (i) through (xiv)date hereof is referred to herein as a “Company Contract”.
(b) The An accurate and complete copy of each written Company Contract executed by the parties thereto (including all amendments thereto) has been made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material ContractBuyer.
(c) Except as Neither the Company nor, to Sellers’ knowledge, any other party to a Company Contract, is in material breach, violation or default under, or has received written notice (that has not been cured or corrected) that it has materially breached, violated or defaulted under (nor does there exist any condition under which, with the passage of time or the giving of notice or both, would not, individually or in the aggregate, reasonably be expected to be cause such a material to the Company and its Subsidiariesbreach, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of violation or default under under), any Contract listed, or required to be listed, in Section 3.12(aCompany Contract.
(d) 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 a valid, binding and enforceable against obligation of the Company and, to Sellers’ knowledge, of the other party or parties thereto, in accordance with its terms and its Subsidiaries (is in full force and effect, in each case except to the extent party thereto) andenforcement may be limited by applicable bankruptcy, to the Company’s knowledgeinsolvency, each reorganization, moratorium or other party thereto. As laws affecting creditors’ rights generally or by general equitable principles or by principles of the date good faith and fair dealing (regardless of this Agreement, no party to any Company Material Contract has given any written notice, whether enforcement is sought in equity 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 otherwiseat law).
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 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 Agreement;Disclosure 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: Merger Agreement (CoreWeave, Inc.)
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 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 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. (a) Section 3.18 of the Disclosure Schedule sets forth, as of the date hereof, a true, complete and correct list of every contract, agreement, loan, lease, license, guarantee, understanding or commitment that (i) provides for future payments by the Company or any Company Subsidiary, or to the Company or any Company Subsidiary, of more than $500,000 per annum and has an unexpired term exceeding one year and may not be canceled upon 60 days' notice without any liability, penalty or premium (excluding purchase orders, invoices and leasing transactions entered into or incurred in the ordinary course of business); (ii) was entered into by the Company or a Company Subsidiary with an Affiliate, a stockholder, officer, director or significant employee of the Company, a Company Subsidiary or Seller; (iii) is a collective bargaining or similar agreement; (iv) involves an agreement with any bank, finance company or other organization for Indebtedness of the Company or any Company Subsidiary; (v) restricts the Company or any Company Subsidiary from engaging in any business or activity anywhere in the world, other than restrictions which are immaterial to the conduct of the Business; or (vi) is an employment agreement, consulting agreement, severance or termination agreement or similar arrangement. Section 3.18 of the Disclosure Schedule (which shall be delivered no later than four days from the date hereof) sets forth, as of the date hereof, a true, complete and correct list of all ▇▇▇▇▇, springs and other water sources used by the Company or any Company Subsidiary in its business.
(b) As of the date hereof, (i) there is not and, to the Knowledge of this AgreementSeller, none there has not been claimed or alleged by any Person with respect to any contract listed or which should be listed in Section 3.18 of the Disclosure Schedule any existing default or event that, with notice or lapse of time or both, would constitute a default or event of default on the part of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect Company Subsidiary or, to the Knowledge of Seller, on the part of any other party thereto, except such defaults, events of default and other events that would not result in a Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
Material Adverse Effect and (ii) collective bargaining agreement no consent, approval, authorization or Contract with waiver from, or notice to, any labor union, trade organization, works council Governmental Entity or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or Person is required in order to maintain in full force and effect any of its Subsidiaries obtains the services of temporary contracts listed or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset which should be listed in Section 3.18 of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of creditDisclosure Schedule, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof consents and waivers thereunder, that have been obtained and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal are unconditional and in full force and effect and is validsuch notices that have been duly given and (B) such consents, binding and enforceable against approvals, authorizations, waivers or notices, the failure of which to have or give would not have a Company Material Adverse Effect. Neither the Company and its Subsidiaries (nor any Company Subsidiary is in default with respect to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As any contract listed or which should be listed in Section 3.18 of the date of this AgreementDisclosure Schedule, no party except as would not reasonably be expected to any result in a Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) As Except as set forth on Schedules 2.2(b), 2.4, 2.12 or 2.20(b), as of the date of this Agreement, none the Company does not have, is not a party to nor is it bound by: any collective bargaining agreements, any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations, any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement with a firm or other organization, any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, any fidelity or surety bond or completion bond, any lease of personal property involving annual payments by the Company in any individual case in excess of $50,000, any agreement of indemnification or guaranty other than pursuant to the Company's standard end-user license agreement, which is attached to the Company Schedule, any agreement containing any covenant limiting the freedom of the Company or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees;
(iii) Contract relating to the acquisition or disposition of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this Agreement;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete engage in any line of business or to conduct business compete with any Person or in person, any geographical area, (B) obligating the Company or any of its Subsidiaries agreement relating to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively capital expenditures and involving payments required to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted be made by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(vi) (A) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) Agreement in excess of $150,000, any agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets or any interest in any business enterprise outside the ordinary course of the Company's business, any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts agreements or instruments relating to the borrowing of money by or extension of creditcredit by or to the Company, other than any purchase order or contract for the purchase of raw materials (Anot including in-license of technology) accounts receivables and payables; involving $5,000 or more, any construction contracts, any distribution, joint marketing or development agreement which cannot be canceled without penalty upon notice of sixty (B60) loans days or less, Except for escrow agreements identified on Schedule 2.12, any agreement pursuant to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty agreement that involves payments by the Company of any of its Subsidiaries’ obligations $100,000 or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which more or is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues cancelable without penalty in excess of $500,000 during the 2024 fiscal year;
25,000 within thirty (xiv30) Contract between days. Except as specifically disclosed in the Company or any of the Company’s SubsidiariesSchedule, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of breach, violation or default under any Contract listedunder, or required to be listed, in Section 3.12(a) of and the Company Disclosure Letter (eachhas not between December 31, together with any Contract entered into after 1999 and the date of this Agreement but would be received any written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on Section 3.12(a) of the Company Disclosure Letter if Schedule 2.12 or Schedule 2.11 (any such Contract was in effect as of the date of this Agreementagreement, contract or commitment, a “Company Material "Contract” and") (except for notices relating to breaches, collectivelyviolations or defaults that have been cured or corrected in all material respects). Assuming due execution by the other parties thereto, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against except as otherwise disclosed in the Company and its Subsidiaries (Schedules is not subject to any default thereunder of which the Company has knowledge by any party obligated to the extent party thereto) and, to the Company’s knowledge, each other party Company pursuant thereto. As of Schedule 2.12(A) identifies each Contract that requires a consent, waiver or approval to preserve all rights of, and benefits to, the date of this Agreement, no party to any Company Material Surviving Corporation under such Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of entering into this Agreement or effecting the Merger or the other transactions contemplated hereby or otherwiseby this Agreement (each a "Required Consent").
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Contracts and Commitments. (a) As of the date of this Agreement, none 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 the date of this AgreementMSAI does not have any agreement or contract that is material to its business, none of the Company operations or any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreementprospects;
(iib) collective bargaining agreement No contracts or Contract commitments of MSAI continue for a period of more than six (6) months from the date hereof or require payments, in the aggregate, in excess of $10,000.00;
(c) MSAI does not have any outstanding contract, written or oral, with any labor unionofficer, trade organizationemployee, works council or other employee representative bodyagent, Contract with a third-party professional employer organizationconsultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or other Contract with any other third party which canbroker that is not be terminated with cancelable by MSAI, on notice of not longer than thirty (30) days’ notice days and without liability, penalty or lesspremium of any kind, under except liabilities which the Company arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of its Subsidiaries obtains the services of temporary any bonus or leased employeescommission based on sales or earnings;
(iiid) Contract relating MSAI is not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to MSAI in the acquisition or disposition event they are not sold and which could involve a liability of any product line, business or material asset of the Company or any of its Subsidiaries, in each case, with obligations remaining to be performed or Liabilities continuing after the date of this AgreementMSAI;
(ive) Contract establishing MSAI has no (i) any joint venturesoutstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of inventory) to any person, partnershipsor (ii) any factoring, profit shares, material collaborations credit line or similar arrangementssubordination agreement;
(vf) Contract Except as noted on SCHEDULE 4.11 (AIndebtedness) prohibiting and -------------- except for negotiable instruments in the process of collection, MSAI does not have any power of attorney outstanding or materially any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(g) Except for the arrangement set forth on SCHEDULE 2.02, there -------------- are no contracts or agreements with any director, officer or shareholder of MSAI, or with any person related to any such person or with any company or other organization in which any director, officer, or shareholder of MSAI, or anyone related to any such person, has a direct or indirect financial interest;
(h) MSAI is not subject to any contract or agreement containing covenants limiting the right freedom of the Company or any of its Subsidiaries MSAI to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company geographic area or requiring MSAI to share any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons the right to manufacture, sell, market or distribute any Product of the Company or any of its Subsidiaries, in each case, on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesprofits;
(vii) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of MSAI or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(Aj) Third Party Component Contract or (B) other Contract relating Except for the arrangement set forth on SCHEDULE 2.02, to the research------------- knowledge of MSAI and the Seller, testingMSAI is not party to or bound by any presently or previously existing contract, development, commercialization, manufacture agreement or supply of any Product of the Company other arrangement that has had or any of its Subsidiaries, and, may in the case future have a material adverse effect upon the business, earnings or financial condition of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from MSAI. MSAI and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xii) Company Real Property lease;
(xiii) Contract under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal year;
(xiv) Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; or
(xv) Contract to enter into any Contract of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has Seller have made available to Parent a true and correct copy of all written Company Material ContractsPurchaser true, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms copies of all contracts, agreements, plans, leases, policies and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listedlicenses referred to, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required referred to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Companylisted on, any notice (whether or not written) Schedule delivered hereunder. SCHEDULE 4.23A sets forth a list of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise)contracts and agreements received -------------- by Purchaser.
Appears in 1 contract
Contracts and Commitments. (a) As Section 4.12 of the Company Disclosure Letter identifies each Contract that constitutes a Company Material Contract as of the date of this Agreement. For purposes of this Agreement, none each of the following shall be deemed a “Company or any of its Subsidiaries is a party to or bound by anyMaterial Contract”:
(i) “material contract” (as such term is defined in Item 601(b)(10601 (b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries Subsidiary that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232021, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a thirdbody (other than any statutorily mandated agreement in non-party professional employer organization, or other Contract with any other third party which cannot be terminated with thirty U.S. jurisdictions) (30) days’ notice or less, under which the Company or any of its Subsidiaries obtains the services of temporary or leased employees“Labor Agreements”);
(iii) Contract establishing or relating to the acquisition formation, creation, operation, management or disposition control of any product linejoint venture, business partnership, collaboration or material asset of the Company or any of its Subsidiariessimilar arrangement, in each case, with obligations remaining that is reasonably likely to be performed or Liabilities continuing after the date result in payments in excess of this Agreement$500,000;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries Affiliates (including, following the Closing, Parent or any of its Affiliates) to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services with a value in excess of $250,000 (excluding purchase orders entered in the ordinary course of business), or to sell any material product or service exclusively to a single party, (C) under which the Company or any of its Subsidiaries has granted to any Person or group of Persons has been granted the (1) exclusive right to develop, manufacture, sell, market or distribute any Product Products, or (2) non-exclusive right to develop, manufacture, sell, market or distribute any Products (excluding, solely for subclause (C)(2), any Routine Services Contracts entered into in the ordinary course of business), (D) provides for “exclusivity” or any similar requirement in favor of any Person or group of Persons or in any geographical area or (E) requiring the Company or any of its SubsidiariesAffiliates (including, in each casefollowing the Closing, Parent or any of its Affiliates) to conduct any business on an exclusive basis in any geographical area, (D) containing any a “most favored nations” basis with any Person;
(v) Contract in respect of Indebtedness of $100,000 or similar preferential terms and conditions (including with respect to pricing) granted more, or any loan by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiariesother Person;
(vi) Contract (Aother than a Company Plan) Third Party Component Contract or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of any Product of between the Company or any of its Subsidiaries, and, in the case of this clause (B), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to direct or indirect wholly-owned Subsidiaries, in the case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xi) Contract between the CompanySubsidiary, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(xiivii) Company Real Property leaseContract relating to the voting or registration of any securities;
(xiiiviii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets;
(ix) Contract that contains any standstill or similar agreement pursuant to which the Company or its Subsidiary has agreed not to acquire assets or securities of another Person;
(x) Contract under which the Company and the Company’s Subsidiaries or its Subsidiary has made annual expenditures or received or expects to make or receive annual revenues payments in excess of $500,000 during the 2024 current or a subsequent fiscal yearyear other than, in each case, a Company Plan;
(xi) Corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with Governmental Bodies that have existing or contingent performance obligations;
(xii) Contract of the Company or its Subsidiary relating to the settlement, conciliation or similar agreement with any Governmental Body or Person that provides for payments in excess of $250,000, or that provides for any continuing material obligations on the part of the Company or its Subsidiary;
(xiii) Contract of the Company or its Subsidiary that prohibit, limit or restrict the payment of dividends or distributions in respect of the Company Securities, or otherwise prohibit, limit or restrict the pledging of Company Securities, or prohibit, limit or restrict the issuance of guarantees by the Company or its Subsidiary other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiv) stockholders’, investors rights’, registration rights or similar Contract between the (excluding Contracts governing Company Stock Options or any of the Company’s Subsidiaries, on the one hand, and any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Body; orCompany Restricted Stock);
(xv) Contract (including all amendments, extensions and renewals with respect thereto) pursuant to enter into which the Company or its Subsidiary leases or subleases any material real property;
(xvi) Contract with or binding upon the Company, its Subsidiary or any of its respective properties or assets that is of the type described in the foregoing clauses (i) through (xiv).
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all amendments thereof and waivers thereunder, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) the Company is not (and to the Company’s knowledge is not alleged to be) in breach of or default under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but that would be required to be set forth on Section 3.12(a) disclosed under Item 404 of Regulation S-K under the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company or any of its Subsidiaries to each of the Company Material Contracts is not in breach thereof or in default thereunder. Each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company and its Subsidiaries (to the extent party thereto) and, to the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).Securities Act;
Appears in 1 contract
Sources: Merger Agreement (Akouos, Inc.)
Contracts and Commitments. (a) As 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 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 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 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 nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement Contract (A) relating to the disposition or Contract with acquisition by the Company or any labor unionof its Subsidiaries of a material amount of assets (1) after the date of this Agreement, trade organizationother than the sale of inventory in the ordinary course of business, works council or (2) prior to the date of this Agreement, that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other employee representative body, Contract with a third-party professional employer organization, contingent obligations) that are still in effect that are expected to result in claims in excess of $2,000,000 or other Contract with any other third party which cannot be terminated with thirty (30B) days’ notice or less, under pursuant to which the Company or any of its Subsidiaries obtains will acquire any material ownership interest in any other person or other business enterprise other than a Subsidiary of the services of temporary or leased employeesCompany;
(iii) Contract relating to the acquisition establishing any joint venture, partnership, limited liability company or disposition of any product line, business or material asset of the Company or any of its Subsidiariescollaboration, in each case, with obligations remaining that is material to be performed or Liabilities continuing after the date of this AgreementCompany and its Subsidiaries, taken as a whole;
(iv) Contract establishing any joint ventures, partnerships, profit shares, material collaborations or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, to sell any material product or service exclusively to a single partyparty or making any material commitment, such as a minimum volume requirement or capacity reservation fees, to a contract manufacturing organization, (C) under which requiring the Company or any of its Subsidiaries has granted to conduct any business on a “most favored nations” basis with any third party or (D) under which any Person or group of Persons has been granted the right to manufacture, sell, market or distribute any Product product of the Company or any of its Subsidiaries, in each case, Subsidiaries on an exclusive basis in any geographical area, (D) containing any “most favored nations” or similar preferential terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries, or (E) grants any rights of first refusal, right of first offer, right of negotiation or similar right to acquire rights or ownership with respect to any material assets or business of the Company or any of its Subsidiaries;
(viv) Contracts in respect of Indebtedness of $5,000,000 or more (A) Third Party Component Contract whether incurred, assumed, guaranteed or (B) other Contract relating to the research, testing, development, commercialization, manufacture or supply of secured by any Product of the Company or any of its Subsidiaries, and, in the case of this clause (Basset), providing for minimum payment obligations payable to or by the Company of at least $100,000 in any prospective twelve (12)-month period;
(vii) Contract pursuant to which the Company or any of its Subsidiaries (A) licenses any Intellectual Property (other than commercially available off-the-shelf Software) from another Person, which Intellectual Property is used by the Company or one of its Subsidiaries in the conduct of its business as currently conducted (each, a “Company In-License”) or (B) licenses any Intellectual Property owned or in-licensed by the Company or any of its Subsidiaries to another Person (other than an Affiliate), except non-exclusive licenses that are granted in the ordinary course of business to service providers, contract manufacturing organizations or customers of Company or any of its Subsidiaries;
(viii) Contract pursuant to which the Company or any of its Subsidiaries has any continuing obligation to make any milestone or royalty or other “earnout” or similar contingent or deferred payments potentially payable by the Company or any of its Subsidiaries in the aggregate over the term of the Contract from and after the date of this Agreement;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than (A) accounts receivables and payables; (B) loans to or among direct or indirect wholly-wholly owned Subsidiaries, in the each case of each of clauses (A) and (B), in the ordinary course of business; and (C) Indebtedness or guarantees for Indebtedness, the principal amount of which does not exceed $50,000;
(x) Contract providing for any guaranty by the Company or any of its Subsidiaries of third-party obligations (under which the Company or any of its Subsidiaries has continuing obligations as of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations or (B) contractual indemnification obligations made in the ordinary course of business and that are merely incidental to the transaction contemplated in any Contract, the commercial purpose of which is primarily for something other than such indemnification obligations, and which indemnification obligations are not material to the business of the Company or any of its Subsidiaries;
(xivi) Contract between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(vii) Contract relating to the voting or registration of any securities;
(viii) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets that have a fair market value or purchase price of more than $5,000,000 in favor of a party other than the Company or any of its Subsidiaries;
(ix) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $3,000,000 during the fiscal year 2025 or fiscal year 2026;
(x) Contracts of the Company or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xi) Contracts of the Company or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit or restrict the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by the Company or any of its Subsidiaries;
(xii) Company Real Property leaseContracts with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Products that involve payments in excess of $1,000,000 during the current fiscal year;
(xiii) Contract with any Governmental Body under which the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues payments in excess of $500,000 during 2,000,000 were received by the 2024 Company in the most recently completed fiscal year;
(xiv) Contract between Hedging, swap, derivative or similar Contract;
(xv) Contracts pursuant to which the Company or any of the Company’s Subsidiaries, on the one hand, and its Subsidiaries has monetized any Governmental Body, on the other hand, other than any such Contracts the primary purpose of which is the sale of any Products or Services to such Governmental Bodyfuture revenue stream; or
(xvxvi) Contract to enter into any Contract of the type foregoing. Each such Contract described in the foregoing clauses (i) through (xiv)xvi) above of this Section 4.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Real Property lease listed in Section 4.11(b) of the Company Disclosure Letter and each IP Contract required to be listed in Section 4.14(e) of the Company Disclosure Letter, is referred to herein as a “Company Material Contract.”
(b) The Company has made available to Parent a true and correct copy of all written Company Material Contracts, together with any and all material amendments thereof and or waivers thereunderthereto, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.
(c) Except as would notnot reasonably be expected to, individually or in the aggregate, reasonably be expected to be material to the have a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect, (i) neither the Company is not nor any of its Subsidiaries (and A) is, or has sent or received written notice that any other party to the Company’s knowledge is not alleged to be) any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Contract listed, or required to be listed, in Section 3.12(a) of the Company Disclosure Letter (each, together with any Contract entered into after the date of this Agreement but would be required to be set forth on Section 3.12(a) of the Company Disclosure Letter if such Contract was in effect as of the date of this Agreement, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) Contract to the Company’s knowledge, as of the date of this Agreement, the parties other than the Company which it is a party or any of its Subsidiaries properties or other assets is subject, (ii) there has occurred no event giving to each others any right of the termination or amendment of (with or without notice or lapse of time or both) any such Company Material Contracts is not in breach thereof or in default thereunder. Each Contract and (iii) each such Company Material Contract is legal and in full force and effect and is valida legal, valid and binding agreement of, and enforceable against against, the Company and or any of its Subsidiaries (to the extent party thereto) Subsidiaries, and, to the Knowledge of the Company’s knowledge, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice, or to the knowledge of the Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. Except as set forth in Section 3.16 of the Disclosure Schedule:
(a) As of the date of this Agreement, none of the Company or any of its Subsidiaries Seller is not a party to or bound by any:
any written or binding agreements, contracts or commitments, which are material to the Business, Seller's operations or prospects (for purposes of this Section 3.16(a), an agreement, contract or binding commitment shall be deemed to be material if it (i) “material shall call for the expenditure of $1,000 or more in any 12-month period, or (ii) shall not be terminable according to its terms without liability on not more than 30 days' notice);
(b) no purchase contract” , contract for the performance of services or other written or binding bid or commitment of Seller (as such term i) continues for a period of more than three (3) months from the date hereof and is defined not terminable by Seller according to its terms without liability on not more than 30 days' notice; (ii) is in Item 601(b)(10) of Regulation S-K excess of the SECnormal, ordinary and usual requirements of the Business; (iii) is with any Affiliate of Seller; (iv) has been prepaid in whole or part; and/or (v) has had any delivery thereunder requested to be delayed to a date past the Closing Date;
(c) Seller is not a party to or bound by any contracts, agreement or arrangements: (i) with respect to the Company any federal, state, local 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, 2023foreign government, or any Company SEC Documents filed after the date of filing of such Form 10governmental or quasi-K until the date of this Agreement;
(ii) collective bargaining agreement governmental agency, board, bureau, authority or Contract with any labor union, trade organization, works council or other employee representative body, Contract with a third-party professional employer organizationcommission, 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 utility company except 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), customer contracts entered into in the ordinary course of business; and , (Cii) Indebtedness with any charitable organization, (iii) with any officer 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 director of the date of this Agreement), other than (A) any guaranty by the Company of any of its Subsidiaries’ obligations Seller 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 Seller or members of the Company)immediate family of the foregoing (a "Related Person") or (iv) providing for the payment of any bonus or commission, whether based on the other handsales or earnings or otherwise;
(xiid) Company Real Property leaseSeller is not a party to or otherwise bound by any written or binding (i) employment agreements, (ii) non-competition agreements or (iii) any other agreements, practices or understandings that contain or will impose on Buyer any severance or termination pay liabilities or obligations;
(xiiie) Contract under Seller is not a party to or bound by any (i) collective bargaining or union contracts or agreements or (ii) material practices or understandings with any of employees which will be binding on Buyer and are not embodied in a written collective bargaining or union contract or other written agreement listed in Section 3.16 of the Company and the Company’s Subsidiaries made annual expenditures or received annual revenues in excess of $500,000 during the 2024 fiscal yearDisclosure Schedule;
(xivf) Contract Seller is not in default, nor to Seller's knowledge is there any basis for any valid claim of default against Seller, and to the best of Seller's knowledge no other party is in default, under any contract, agreement, commitment or restriction which is an Assumed Obligation, and no event of default has occurred which (whether with or without the giving of notice, lapse of time, or both, or the happening or occurrence of any other event) would constitute a default thereunder;
(g) Seller is not a party to or bound by any consulting agreement;
(h) Except pursuant to the Agreement dated May 12, 1997, by and between the Company or Seller and Case Corporation, Seller is not restricted by any of the Company’s Subsidiaries, agreement from carrying 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 Business anywhere in the foregoing clauses world;
(i) through Seller is not a party to or bound by any outstanding powers of attorney (xivexcept for powers of attorney issued to customs brokers in the ordinary and usual course of business) or any other outstanding obligations or liabilities (whether absolute, accrued, contingent or otherwise)., as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any other person, corporation, partnership, joint venture, association, organization or other entity;
(bj) The Company has made available Seller is not a party to Parent a true and correct copy of all or bound by any partnership or joint venture agreement, or any written Company Material Contractsor binding oral royalty, together with any and all amendments thereof and waivers thereunderdistribution, and a correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract.agency, territorial or license agreement;
(ck) Except as would not, individually There are no credit cards issued to any of Sellers employees or in the aggregate, reasonably for which Seller is directly liable and for which any liability will be expected sought to be material imposed on Buyer;
(l) Seller is not a party to the Company and its Subsidiariesor bound by any barter or counter trade agreement;
(m) Seller is not a party to or bound by any cooperative advertising agreement or arrangement;
(n) Seller has no debt obligation for borrowed money;
(o) Seller has no outstanding loans to any person; and
(p) There are no outstanding sales contracts, taken as a whole, commitments or bids of Seller which (i) the Company is not continue for a period of more than six (and to the Company’s knowledge is not alleged to be6) 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 months from 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 Agreementhereof, a “Company Material Contract” and, collectively, the “Company Material Contracts”) and (ii) were entered into more than six (6) months prior to the Company’s knowledgedate hereof, as or (iii) have been prepaid in whole or part;
(q) all contracts, agreements, and leases, referred to in Section 3.16 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 Disclosure Schedule (i) are valid and in full force and effect effect, (ii) will, except for the obtaining of any consents listed in Section 3.23 of the Disclosure Schedule that shall not have been obtained by the Closing, continue to be so on the same terms and is validconditions immediately after the Closing without the need for any action on the part of Buyer, binding other than Buyer's performance of the Assumed Obligations and, where specifically and enforceable against expressly set forth in Section 3.7 of the Company Disclosure Schedule, execution of documents and its Subsidiaries instruments in connection with such assignment, and, (iii) reflect the complete understanding among the parties thereto in connection with the subject matter thereof; true and complete copies of each thereof, including all amendments thereto, have been delivered to Buyer at or prior to the extent party theretodate hereof (regarding material contracts) 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 and will be delivered by Closing (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 otherwisefor all others).
Appears in 1 contract
Sources: Asset and Business Purchase Agreement (Cdknet Com Inc)
Contracts and Commitments. (a) As of the date of this Agreement, none of neither the Company or nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232022, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) collective bargaining agreement 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 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.)